Shamark Smith Limited Partnership, Sharon D. Marcus, and Paul J. Smith v. Martin M. Longoria

ACCEPTED

03-14-00698-CV

4771671

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/6/2015 1:43:30 PM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-14-00698-CV

________________________________________

FILED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS IN AUSTIN, TEXASAUSTIN, TEXAS

4/6/2015 1:43:30 PM

________________________________________

JEFFREY D. KYLE

Clerk

SHAMARK SMITH LIMITED PARTNERSHIP, ET AL.,

Appellants,

v.

MARTIN LONGORIA,

Appellee.

________________________________________

On appeal from the 20th Judicial District Court of Milam County, Texas

________________________________________

APPELLANTS’ BRIEF

________________________________________

Tracy J. Willi

Texas Bar No. 00784633

Willi Law Firm, P.C.

9600 Escarpment Blvd., Suite 745, PMB 34

Austin, TX 78749-1983

Tel. (512) 288-3200

Fax (512) 288-3202

twilli@willi.com

ATTORNEY FOR SHAMARK SMITH

LIMITED PARTNERSHIP, SHARON D.

MARCUS, AND PAUL J. SMITH

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellants:

Sharon D. Marcus, an individual

Paul J. Smith, an individual

Shamark Smith Limited Partnership

Appellate Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark Smith

Limited Partnership:

Tracy J. Willi

Willi Law Firm, P.C.

9600 Escarpment Blvd., Suite 745, PMB 34

Austin, TX 78749

Tel. (512) 288-3200

Fax (512) 288-3202

twilli@willi.com

Trial Court Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark

Smith Limited Partnership:

Israel Garcia

Law Offices of Israel Garcia

Chulie Professional Building

926 Chulie Dr.

San Antonio, TX 78216

Tel. (210) 225-6666

Fax (210) 225-2300

Attorney for Sharon D. Marcus and Shamark Smith Limited Partnership

Paul J. Smith

Attorney at Law

651 S. Walnut, Suite D, #228

New Braunfels, TX 78130

Tel. (713) 271-2413

Fax (713) 237-0820

Attorney pro se at trial

ii

Appellee:

Martin M. Longoria, an individual

Appellate Counsel for Martin M. Longoria:

James David Walker

P.O. Box 41

Milano, Texas 76556

Tel. (512) 636-9520

Fax (512) 455-7992

walker@2appeal.com

Trial Counsel for Martin M. Longoria:

Mickey Blanks

Blanks, Greenfield & Rhodes

P.O. Box 867

Temple, TX 76501-0867

Tel. (254) 778-4181

Fax (254) 778-1280

W.W. Torrey

P.O. Drawer 752

1105 N. Travis

Cameron, TX 76520

Tel. (254) 697-3700

Fax (254) 697-3702

iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................... ii

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED .............................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3

I.  SUMMARY OF THE CLAIMS. .................................................................. 3

II.  LONGORIA FAILED TO PRESENT EVIDENCE OF

RECOVERABLE DAMAGES. .................................................................... 4

No evidence of injury to reputation. .................................................. 5

No evidence of mental anguish. .......................................................... 6

III.  THE RECORD DEMONSTRATES THAT JURORS SHOULD

HAVE BEEN STRUCK FOR CAUSE. ....................................................... 7

The jury held the Shamark Parties to the higher standard of

proof of “beyond a reasonable doubt.” ............................................. 7

Jurors refused to find in favor of Shamark Parties’ claims or

defenses involving theft unless Longoria had been convicted

of the crime......................................................................................... 12

Challenges for cause were denied by the trial court. ..................... 13

Attempted rehabilitation by opposing counsel was

ineffective. .......................................................................................... 13

Attempted rehabilitation by the Court was ineffective. ................ 14

The Shamark Parties had to use peremptory strikes against

jurors who should have been struck for cause. Also, three

jurors who should have been struck for cause were selected

for the jury. ........................................................................................ 15

iv

SUMMARY OF THE ARGUMENT ..................................................................... 16

ARGUMENT ........................................................................................................... 18

I.  THE EVIDENCE IS LEGALLY AND FACTUALLY

INSUFFICIENT TO SUPPORT ACTUAL DAMAGES. ....................... 18

Standard of review. ........................................................................... 18

Defamation was the gravamen of the complaint and the only

basis for the jury’s damages finding. Claims for intentional

infliction of emotional distress and malicious prosecution

were waived and do not support damages. ..................................... 19

If more than nominal damages are awarded, then injury to

reputation and mental anguish damages must be supported

by evidence of actual injury.............................................................. 20

Damages awarded for injury to reputation are not supported

by the evidence. .................................................................................. 20

Damages awarded for mental anguish are not supported by

the evidence. ....................................................................................... 23

II.  NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES

MAY BE AWARDED. ................................................................................ 25

III.  NO REMAND FOR A DETERMINATION OF NOMINAL

DAMAGES. .................................................................................................. 28

IV.  THE TRIAL COURT ABUSED ITS DISCRETION BY

REFUSING TO STRIKE JURORS CHALLENGED FOR

CAUSE. ......................................................................................................... 28

V.  CONCLUSION AND PRAYER. ................................................................ 33

CERTIFICATE OF COMPLIANCE ....................................................................... 33

CERTIFICATE OF FILING AND SERVICE ........................................................ 34

v

APPENDIX

Final Judgment dated August 15, 2014 (CR 1082–85) ................................... App. 1

Charge of the Court (CR 1031–59) .................................................................. App. 2

Burbage v. Burbage,

447 S.W.3d 249 (Tex. 2014) .................................................................. App. 3

vi

INDEX OF AUTHORITIES

Cases

Bentley v. Bunton,

94 S.W.3d 561 (Tex. 2002) (plurality opinion) ............................................ 20

Buls v. Fuselier,

55 S.W.3d 204 (Tex. App.-Texarkana 2001, no pet.) .................................. 30

Burbage v. Burbage,

447 S.W.3d 249 (Tex. 2014) ...................................................1, 20–22, 27, 28

Cain v. Bain,

709 S.W.2d 175 (Tex. 1986) ........................................................................ 19

Hammerly Oaks, Inc. v. Edwards,

958 S.W.2d 387 (Tex. 1997) ........................................................................ 22

Hancock v. Variyam,

400 S.W.3d 59 (Tex. 2013) ........................................................18, 20, 22, 27

Hoffman-La Roche, Inc. v. Zeltwanger,

144 S.W.3d 438 (Tex. 2004) .................................................................. 20, 25

Holland v. Wal-Mart Stores, Inc.,

1 S.W.3d 91 (Tex. 1999) .............................................................................. 25

Hyundai Motor Co. v. Vasquez,

189 S.W.3d 743 (Tex. 2006) .................................................................. 29, 30

Intercont’l Grp. P’ship v. KB Home Lone Star, L.P.,

295 S.W.3d 650 (Tex. 2009) ........................................................................ 25

Malone v. Foster,

977 S.W.2d 562 (Tex. 1998) ........................................................................ 29

Mancorp, Inc. v. Culpepper,

802 S.W.2d 227 (Tex. 1990) ........................................................................ 25

MBM Fin. Corp. v. Woodlands Operating Co., L.P.,

292 S.W.3d 660 (Tex. 2009) ........................................................................ 28

vii

Murff v. Pass,

249 S.W.3d 407 (Tex. 2008) ........................................................................ 32

Parkway Co. v. Woodruff,

901 S.W.2d 434 (Tex. 1995) .................................................................. 23, 24

Plas-Tex, Inc. v. U.S. Steel Corp.,

772 S.W.2d 442 (Tex. 1989) ........................................................................ 19

Saenz v. Fidelity & Guar. Ins.,

925 S.W.2d 607 (Tex. 1996) ........................................................................ 23

Salinas v. Salinas,

365 S.W.3d 318 (Tex. 2012) (per curiam) ................................................... 20

Shepherd v. Ledford,

962 S.W.2d 28 (Tex. 1998) .......................................................................... 29

Siegler v. Williams,

658 S.W.2d 236 (Tex. App.—Houston [1st Dist.] 1983, no writ) ............... 27

Smith v. Dean,

232 S.W.3d 181 (Tex. App.—Fort Worth 2007, pet. denied) ...................... 30

Standard Fruit and Vegetable Co. v. Johnson,

985 S.W.2d 62 (Tex. 1998) .......................................................................... 20

Sullemon v. U.S. Fid. & Guar. Co.,

734 S.W.2d 10 (Tex. App.—Dallas 1987, no writ) ...................................... 29

Swap Shop v. Fortune,

365 S.W.2d 151 (Tex. 1963) ........................................................................ 30

Turner v. Turner,

385 S.W.2d 230 (Tex. 1964) ........................................................................ 25

Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Ltd.,

434 S.W.3d 142 (Tex. 2014) ........................................................................ 21

viii

Statutes and Rules

TEX. CIV. PRAC. & REM. CODE § 134.005................................................................ 26

TEX. CIV. PRAC. & REM. CODE § 41.004(a) ............................................................ 27

TEX. GOV’T CODE § 62.105(4) ................................................................................ 29

TEX. R. CIV. P. 226a ................................................................................................. 29

TEX. R. CIV. P. 278 ................................................................................................... 19

ix

STATEMENT OF THE CASE

Nature of the Case: This case involves competing claims for conversion

and trespass on one side and intentional infliction of

emotional distress, criminal malicious prosecution,

and defamation on the other side. The appeal focuses

on whether the evidence supports damages for injury

to reputation and mental anguish and whether jurors

should have been struck for cause.

Trial Court: Hon. Jan Patterson, retired judge sitting by

assignment, 20th Judicial District Court of Milam

County, Texas.

Trial Court’s The trial court entered judgment on the verdict on

Disposition: August 15, 2015. CR 1082–85 (Judgment attached as

App. 1).

ISSUES PRESENTED

1. Did the trial court err in its award of damages, attorney’s fees, and exemplary

damages against Sharon D. Marcus, Paul J. Smith, and Shamark Smith

Limited Partnership?

2. Did the trial court err by refusing to strike jurors that had been challenged for

cause?

2

STATEMENT OF FACTS

I. SUMMARY OF THE CLAIMS.

This case was brought by Shamark Smith Limited Partnership (“Shamark”)

against Martin Longoria (“Longoria”) for conversion and trespass. CR 8–10.

Shamark owns property with a house in rural Milam County. Shamark asserted that

Longoria trespassed onto Shamark’s property and instructed his workers to

dismantle the building and to steal various antiques and other items of value, such

as the tin roof and valuable lumber, from the property. Longoria counterclaimed

against Shamark, Paul D. Smith, and Sharon D. Marcus (collectively referred to as

the “Shamark Parties”) for criminal malicious prosecution, intentional infliction of

emotional distress, and defamation. CR 17–20. The crux of the case is whether

Longoria had permission to dismantle the house or if Longoria entered without

consent and stole several items of value from the property.

The jury found against Shamark on its claims of conversion and trespass. CR

1034, 1036 (Charge of the Court attached as App. 2). The jury found in favor of

Longoria on his claims of criminal malicious prosecution, intentional infliction of

emotional distress, and defamation. CR 1045 (Question 12, intentional infliction of

emotional distress); CR 1046 (Question 13, criminal malicious prosecution); and CR

1047–50 (Question 14, 15, 16, and 17, defamation). The jury awarded damages

based solely upon its finding of a published statement in Question 14 that, “Martin

3

Longoria had stolen components of or contents inside the Old Sneed Home.” CR

1047, 1052. While the damages question was pre-conditioned on findings of “yes”

to Questions 12 (malicious prosecution), 13 (intentional infliction of emotional

distress), or 18 (clear and convincing evidence of falseness), Question 19 on

damages requested the jury to determine damages linked directly and solely to

Question 14, the finding that the statement of theft was published. Id.

II. LONGORIA FAILED TO PRESENT EVIDENCE OF

RECOVERABLE DAMAGES.

The jury awarded damages for injury to reputation in the past in the amount

of $275,000 against Smith, Marcus, and Shamark divided as $90,000, $90,000 and

$95,000 respectively. CR 1052. The jury awarded damages for injury to reputation

in the future in the amount of $40,000 against Smith, Marcus, and Shamark divided

as $10,000, $10,000, and $20,000 respectively. CR 1052. The jury further awarded

mental anguish damages in the past of $75,000 against Smith, Marcus, and Shamark

divided as $20,000, $20,000, and $35,000 respectively. CR 1053.

Question 8 requested the jury to determine whether Longoria or any of his

agents committed theft of property valued at $20,000 or greater. CR 1041. The jury

was instructed not to answer the question if it did not answer “yes” to Question 1.

Since the answer to Question 1 was “no” the jury did not answer Question 8. Id.

Question 11 was conditioned to be answered only if there was a “no” answer to

Question 8. Nonetheless, in response to Question 11, the jury awarded attorney’s

4

fees to Longoria in the amount of $163,000 for representation in the trial court,

$30,000 for representation through appeal to the Court of Appeals, and $20,000 for

representation through appeal to the Supreme Court of Texas. CR. 1044.1 Question

11 was not based upon any other particular finding in the jury charge—it was not

linked to any liability finding. Id. The attorney’s fees cannot be based upon the

answer to Question 8 on “theft” because the jury did not answer Question 8.

The jury further awarded exemplary damages for the conduct found in

Question 20 (the harm to Longoria resulted from malice) or 21 (the harm to Longoria

resulted from fraud) against Smith, Marcus, and Shamark in the amount of $100,000

divided as $30,000, $30,000, and $40,000 respectively. CR 1056.

Several legal arguments will be addressed to challenge the awards of

exemplary damages and attorney’s fees, but very basically, without evidence of

actual damages, exemplary damages and attorney’s fees are not recoverable.

No evidence of injury to reputation.

Counsel for Longoria made it clear during trial that, “We are not asking for,

nor are we seeking in the jury charge to recover any economic damages.” RR Vol.

1

The jury understood it was not requested to answer Question 11 since it did not

answer Question 8 affirmatively or negatively. Nonetheless, when the jury sent out

a question to the judge on whether they should answer Question 11, the judge

instructed the jury to answer Question 11, but did not instruct the jury to answer

Question 8. Supp CR 42. There is no legal basis for the jury to have answered

Question 11 in this jury charge.

5

8, 203. Longoria testified that the criminal case was dismissed and he was not even

arrested – he simply turned himself in. RR Vol. 8, 202. Longoria testified that he

cannot identify one person who told him that they would not hire him for reasons

relating to the theft accusation or arrest. RR Vol. 8, 202. No one has ever told him

that they would not hire him because of the arrest. No one has ever told him that his

reputation was damaged in any way. RR Vol. 8, 213–14.

No evidence of mental anguish.

Longoria has never been to any medical doctors, mental healthcare

professionals, psychologists, therapists, or any psychiatric care for any kind of

emotional distress. RR Vol. 8, 214. At best, his testimony was that he was merely

worried about what could happen to him if he was found guilty. RR Vol. 8, 214–15.

But the criminal action got no further than the grand jury, where it was no-billed—

Longoria was never indicted. RR Vol. 8, 215. He complained of emotional distress

from the financial concerns, but there was no evidence of financial hardship, and

there was evidence that Longoria had substantial real property interests in Mexico.

RR Vol. 8, 215. The level of emotional distress did not cause him any illness or

physical symptoms. RR Vol. 8, 215. He testified that he is in a bad mood

sometimes, but he can still get up and do his daily activities and it did not disrupt

those daily activities. RR Vol. 8, 216.

6

III. THE RECORD DEMONSTRATES THAT JURORS SHOULD HAVE

BEEN STRUCK FOR CAUSE.

The jury held the Shamark Parties to the higher standard of proof of

“beyond a reasonable doubt.”

The record demonstrates that jurors 6, 8, 9, 10, 12, 13, 14, 24, 26, 31, 32, 33,

47, 49, 50, and 51 should have been struck for cause because they would require the

Shamark Parties to prove that Longoria committed theft beyond a reasonable doubt

rather than by a preponderance of the evidence.

MR. SMITH: Well, I don’t mean to say it’s nothing, okay. What I

mean is if it will help, we’re not going to be sentencing anyone to death.

VENIREPERSON: No, but you’ve got a man that’s got to live the rest

of his life of being accused of something that he may not have done.

MR. SMITH: And if he did it and you determine that he did do it, could

you award money?

VENIREPERSON: Would -- run that by me again.

MR. SMITH: If the person that is accused is proved to your satisfaction

that he did it and the people that lost what they lost prove how much it

was worth, could you award money?

VENIREPERSON: Yeah, but it’s going to be -- have to be beyond a

shadow of a doubt.

MR. SMITH: And if the Judge instructs you that the burden of proof

is not beyond shadow of a doubt but by a preponderance of the

evidence, likely --

VENIREPERSON: (Moving head side to side.)

MR. SMITH: Can’t do it. Okay, that’s fair enough. Juror number...

VENIREPERSON: 50.

7

MR. SMITH: Now, I can cut to the chase. Does anyone else feel the

same way, that the burden of proof must be beyond a reasonable doubt

or a shadow of a doubt? Number 32. Hold on. Let me get -- and I need

to make sure, okay. Please hold your cards up. Number 6, number 9,

number 11, number 12, number 13, number 14, 16, 32, 31, 30, 28, 26,

24, 23, 22, 21, 20, 17, 33, 34, 35, 36, 38, 40, 41, 42, 43, 47, 48, 49 and

50. And you’re number 29? I don’t believe I got it. All right. Second

part. How strongly do you feel that way? What I mean by this is: I

expect the Judge to give a different instruction, okay. If your feeling is

so strong that it won't matter to you what the Judge says as far as burden

of proof, please keep your hand raised or your card raised. If you can

leave room for the possibility -- and that’s juror number 50, number 24,

number 9 and 50 and --

VENIREPERSON: Repeat the question, please.

MR. SMITH: There were a number of us that said beyond a reasonable

doubt, a shadow of a doubt to use Perry Mason. I believe -- I think the

other side believes that the burden of proof instruction will be different

than from the Judge. We believe as we believe and that’s okay. But in

order to be a fair juror to both sides, you have to be able to follow the

law. And if it is such that regardless of what anyone says, it’s still

beyond a reasonable doubt or a shadow of a doubt, that’s okay.

VENIREPERSON: But why is that okay? If – you’re either holding

the smoking gun or you’re not.

MR. SMITH: Because the law is as the Judge will instruct you, okay.

Not every case is a criminal case like on TV. The levels -- let me give

you an example. And this is the best example I can give. In a football

game, if the ball advances to the 50 yard line and one inch, in a civil

case, the side that got the ball to the 50 yard line and one inch wins. If

in a criminal case, which this is not, you’ve got to get into the end zone

to win, that’s beyond a reasonable doubt. Does that help? It’s the only

analogy I know.

VENIREPERSON: They don’t play football that way, though. This is

Texas. You have got to make it to the end zone to make a point.

MR. SMITH: What would you use?

8

VENIREPERSON: It sounds like a rounding game to me, the closest

one to the winning side wins.

MR. SMITH: I’m sorry?

VENIREPERSON: It sounds like a rounding game, the closest within

five wins. That ain’t fair.

MR. SMITH: And that’s okay if you don't believe that or can't follow

that. That’s perfectly fine. It means in this particular type of case, that

you would not be a fair juror to either side. It doesn't mean you wouldn't

be a great juror in, say, a criminal case or a child custody case where

the burdens are different. That's all I'm trying to get at. And I appreciate

the brutal honesty of people, so many people holding their cards up. It's

real important for us, it’s important for them, it’s important for the

Judge, it’s important for justice. Because if the – the mistake or the

belief that we have to prove all beyond every shadow of a doubt is not

the law, justice has failed. That’s not what this courtroom is about and

it's okay to believe as you believe. So how many feel so strongly that

no matter what is told, it still has to be beyond a shadow of a doubt to

award money? Would you please raise your cards. And, Judge, I am

not going to make notes. I’m sorry, folks. I know -- and this is the

most perfect jury I have ever seen because there’s brutal honesty here.

Do you realize how important that is in justice? It is so brutally honest

and so important that people tell their truth no matter what and I

appreciate you, sir. It’s okay, and I respect that. Have we got all the

numbers?

MR. GARCIA: Let me double check real quick.

MR. SMITH: I’m sorry. One more time. I’m sorry but this is the crux

of the case. Are you in, too? Got them?

MR. GARCIA: Got them.

MR. SMITH: Thank you all so much. Now, having answered that

question, I can begin to understand why when you honestly tell me you

would not be a good juror, it’s okay. I accept that. In fact, I honor that

and every one of you. I honor that, telling your truth no matter what.

So there’s some people that are left. Who did not raise their cards?

9

Could I see those that did not raise their cards? Judge, may we

approach?

(Bench conference held outside the hearing of the jury panel.)

MR. SMITH: Your Honor, I don’t want to waste a lot of the Court’s

time or the jury’s time. I believe that that is the essence of the burden

of proof is an instruction and I went through it very clearly. I counted

the numbers left, and I believe there were 13 who could consider other

than beyond a reasonable doubt or a shadow of a doubt. If we struck

six, we would not have enough. I would respectfully request at this

time, we move for a mistrial and that we re-impanel and these people

can go home.

MR. BLANKS: It’s all how he asked the question and he got a response

to a question that I think the jury didn’t understand; otherwise, if he was

picking juries here, we would never have a jury impaneled in Milam

County in civil cases. So his time is up; I think he should sit down and

I should be allowed to clarify.

THE COURT: Whether you misspoke or not, you also said that the

instruction would be different from that that the Judge gives you, that

the law would be different than that that that the Judge gives you, and I

don’t know exactly what you meant by that. But I think it is in the way

you asked the question. You need to -- we may be able to handle this

in camera with individual jurors but you haven’t accomplished your

mission yet. So I am going to deny the motion. You have nine minutes.

MR. SMITH: May I ask them one last thing? What -- particularly --

the Court -- I mean, if it’s -- the panel --

MR. TORREY: It’s standard of proof, not burden of proof.

THE COURT: And you haven’t explained what the burden of proof is,

you haven’t explained preponderance of the evidence and suggested

that – one person said it would have to be beyond a shadow of a doubt

and then you said -- you elicited anyone else from the juror’s answer,

so I don’t think you’ve accomplished your striking for cause.

MR. SMITH: Okay. I’ll go into --

10

MR. TORREY: I think that your voir dire is mostly incoherent, which

adds to their --

THE COURT: You know, I --

COURT REPORTER: I’m having a hard time hearing.

THE COURT: You have nine minutes to complete and then you may

make your -- any appropriate motion at the conclusion of the whole --

MR. SMITH: I didn’t --

THE COURT: -- voir dire. Please continue.

MR. SMITH: Sure.

(Open court, and all counsel and parties present.)

Burden of proof. The term “preponderance of the evidence,” which I

believe that the Judge will instruct you in this case to be the guiding

process by which you decide your verdict means the greater weight of

credible evidence admitted in this case. A preponderance of evidence

is not measured by the number of witnesses or the number of documents

admitted into evidence. For a fact to be proved by a preponderance of

the evidence, you must find the fact is more likely true than not. Do I

-- does everybody understand that?

(No response.)

So earlier I hope that I didn’t misspeak. I may have. This case is on

preponderance of the evidence. It doesn’t mean 100 percent or beyond

a reasonable doubt and I gave a horrible football analogy, okay. Now,

having given the definition that I believe the Judge will give you, can

you decide this case on preponderance of the evidence, or are you going

to require a different, higher burden of proof for us as the people

bringing the initial lawsuit? Does that help any? So can you please

raise your hand if you require a higher burden of proof, a number.

Okay. And I want to get these. Number 6, 8, 9, 10, 12, 13, 14, 32, 31,

26, 24, 33, 49, 50 and 51 and 47. Did I get you? 47. That’s what I need

and it’s okay. It’s okay.

RR Vol. 4, 95–103.

11

Jurors refused to find in favor of Shamark Parties’ claims or defenses

involving theft unless Longoria had been convicted of the crime.

Jurors 8, 9, 12, 13, 31, 24, 26, and 49 were also disqualified as a matter of

law because they required there to be a criminal conviction to award damages in a

civil case involving theft.

MR. SMITH: 26. Three things about yourself.

VENIREPERSON: I moved here from McCulloch County two years

ago and I have a place out and a few cows and I just work and mind my

own business. I don’t really know anybody, don’t -- I don’t know that

I could make an honest assumption, I guess, or something against

somebody if I really knew that they did it. I can feel both sides.

MR. SMITH: Sure.

VENIREPERSON: But I don’t know. If they didn’t convict him, I

guess on the criminal part, then --

MR. SMITH: Is that okay? Do you require a conviction on a criminal

part to get a civil --

VENIREPERSON: It just looks like if he did it and you knew that he

did it, that he would have been convicted.

MR. SMITH: Let me ask this, the last question I have. Would everyone

or anyone require a criminal conviction in order to award money in a

civil case for theft? Can I see the numbers of those people? Eight, 9,

12, 13, 31, 26 and 24 and 49.

THE COURT: Thank you, Mr. Smith.

MR. SMITH: Thank you all for sharing.

RR Vol. 4, 108.

12

Challenges for cause were denied by the trial court.

The trial court denied the Shamark Parties’ challenges for cause as to 6, 8, 9,

10, 12, 13, 14, 24, 26, 31, 32, 33, 47, 49, 50, and 51 based upon the jurors’ responses

requiring proof beyond a reasonable doubt, as opposed to proof by a preponderance

of the evidence. CR 136–42. The trial court denied the Shamark Parties’ challenges

for cause as to jurors 8, 9, 12, 13, 24, 26, 31, and 49 based upon the jurors’ responses

requiring a criminal conviction before finding in favor of the Shamark Parties. CR

136–42. The trial court denied the Shamark Parties’ request for more preemptory

strikes. CR 142.

Attempted rehabilitation by opposing counsel was ineffective.

Mr. Blanks attempted to rehabilitate the jurors who testified that they could

not apply the preponderance of the evidence to the Shamark Parties’ claim and

defense that Longoria committed a theft of the items at the property. However, the

rehabilitation was not specific to any juror and was not specific to the issue of

applying the proper burden of proof to the issue of theft.

MR. BLANKS: […] The question is -- here we go: Can you listen to

the evidence without prejudging either side, understanding that both

sides are saying the other side did something wrong? And can you use

your life’s experiences, your common sense? Can you use those things

to sift through the evidence and simply make a decision about what is

more likely than not to have happened? And that is really the standard,

more likely than not. How can we resolve disputes between people in

this county? That’s the standard, by what is more likely than not. And

if you can’t reach that decision, if you can’t do that, then you say there’s

not enough evidence one way or the other, I’m not going to do it.

13

Burden of proof is your common sense applied to the facts of this case

and you say it's more likely than not Martin or these folks are telling

the truth. When you head out of here, you’re going to do that in every

other venue and every other place in your life. Is there a reason you

can’t do it here? If you can’t do it here, raise your card.

(No response.)

RR Vol. 4 127–28.

Attempted rehabilitation by the Court was ineffective.

After the Court denied the challenges for cause, the trial court made a

perfunctory attempt to rehabilitate the jurors on whether they could abide by the

Court’s instruction to apply the preponderance of the evidence standard. There was

no attempt to discuss the matter individually with any juror and no direct questioning

of any juror.

THE COURT: All right. One last question for you before we take our

final break, which is not a lunch break yet, is: You have heard

discussion and questions concerning both civil and criminal cases, and

as I advised you at the beginning of this case, this is a civil case, and I

will advise you at the conclusion of the case and the lawyers would --

may argue between now and then about the preponderance of the

evidence, which is the standard of proof in a civil case. You will also

hear some testimony about a criminal matter in this case, which has a

different burden of proof and you’ve also heard some questioning about

that during the voir dire. Is there anyone here who has an understanding

of either a civil or criminal law that will not allow them to follow the

instructions that I as the Court give you concerning preponderance of

the evidence, how that burden of proof is allocated between the parties

and how it is shown? You are the judges of the facts and you will follow

the law as I gave it to you. Is there anyone here who has -- who thinks

they will be unable to follow the law as I will give it to you at the

conclusion of this case?

(No response.)

14

THE COURT: Absolutely anyone for any reason?

(No response.)

Thank you, ladies and gentlemen. At this point, I see no hands and I

am going to -- I am going to ask that you take a final 10-minute break,

not for lunch, but you will be able to leave after that, both for a lunch

break and for many of you permanently. So do hold onto your numbers

for now and please be back in your seats at exactly 2:00 o’clock. Thank

you.

RR Vol. 4, 145–46.

The Shamark Parties had to use peremptory strikes against jurors

who should have been struck for cause. Also, three jurors who should

have been struck for cause were selected for the jury.

The 12 member jury consisted of the following jurors from the panel: 1, 2, 4,

7, 8, 10, 11, 13, 16, 19, 21, 22, and alternate 25. RR Vol. 4, 147; Supp. CR 20–28.2

Jurors 8, 10, and 13 on the jury panel had been challenged for cause because they

would require proof beyond a reasonable doubt from the Shamark Parties, rather

than proof by a preponderance of the evidence, on whether Longoria had stolen

property. Also, jurors 8 and 13 on the jury had been challenged for cause because

2

The Clerk’s First Supplemental Record is sealed because it contains the jurors’

personal information. The jury cards appear at Supp. CR 20–28 and indicate in the

upper right-hand corner the handwritten juror number with a circle around it. The

handwritten jury number is the number that was used during voir dire. The printed

number on the upper right-hand corner corresponds to the original jury numbers

before the jury was shuffled as requested by Longoria’s counsel. RR Vol. 4, 32.

The original printed numbers on the jury cards correspond to the randomly assigned

numbers shown on the computer generated jury list. Supp. CR 19.

15

they would require proof of a criminal conviction before they would find in favor of

the Shamark Parties on whether Longoria had stolen property.

The Shamark Parties used seven preemptory strikes (six strikes plus one more

for the alternate). The Shamark Parties used their preemptory strikes on the

following jurors: 6, 9, 12, 14, 20, 24, and 26 (alternate). Supp. CR 38. Of the jurors

struck by the Shamark Parties, the following had been challenged for cause for their

inability to apply the preponderance of the evidence standard of proof: 6, 9, 12, 14,

24, and 26. Of the jurors struck by the Shamark Parties, the following had been

challenged for cause for their inability to find in favor of the Shamark Parties on

whether Longoria had stolen property without proof of a criminal conviction: 9, 12,

24, and 26. In other words, the Shamark Parties had to use five out of six of their

preemptory strikes to strike jurors who should have been disqualified from jury

service in this case. Supp. CR 38. Even after exercising their preemptory strikes,

three jurors remained on the jury who had been challenged for cause—jurors 8, 10

and 13. Supp. CR 20–28. There was no chance of the Shamark Parties succeeding

in this lawsuit with the jury stacked against them.

SUMMARY OF THE ARGUMENT

There is no evidence of damages to support the judgment against the Shamark

Parties. Due to the legal insufficiency of the evidence in support of Longoria’s

16

claims for injury to reputation and mental anguish, the Shamark Parties request this

Court to render judgment that Longoria take nothing on his claims.

This was a highly contentious case. The Shamark Parties insisted that

Longoria committed theft and therefore Shamark’s attempt to have him criminally

prosecuted for that theft was justified. Longoria insisted he did not commit a theft

and had permission to be on the property and removing items. The assertion of theft

was a central issue on this case in both the pursuit of claims against Longoria to

recover damages and in the defense of Longoria’s counterclaims for malicious

prosecution, intentional infliction of emotional distress, and defamation. The jury

required the Shamark Parties to prove theft, whether as an affirmative claim or as a

defense, beyond a reasonable doubt instead of by a preponderance of the evidence.

The jury further required the Shamark Parties to prove that Longoria had been

convicted of that crime before they would find in favor of the Shamark Parties in

this civil case. The jury was stacked against the Shamark Parties. If this case is not

rendered in favor of the Shamark Parties so that Longoria takes nothing on his claims

because of lack of evidence of damages, then the entire case should be reversed for

a new trial for factually insufficient evidence on damages and because the jury was

improperly empaneled.

17

ARGUMENT

I. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT

TO SUPPORT ACTUAL DAMAGES.

Injury to reputation and mental anguish were the only damages requested by

Longoria in this case. CR 1052–53. Longoria failed to offer any evidence at trial

that his reputation was damaged or that he experienced a substantial disruption in

his daily routine or a high degree of mental pain and distress due to the alleged

published statement. See Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013).

Standard of review.

On an issue where the opposing party bears the burden of proof, a legal

sufficiency challenge to an adverse finding is sustained if the evidence demonstrates

a complete absence of a vital fact, or if the evidence offered is no more than a

scintilla. Burbage v. Burbage, 447 S.W.3 249, 259 (Tex. 2014) (attached as App. 3)

(addressing evidence necessary to prove compensable injury to reputation). More

than a scintilla exists when the evidence would enable reasonable and fair-minded

people to reach different conclusions. Id. Evidence that creates a mere surmise or

suspicion of a vital fact as, in legal effect, constitutes no evidence. Id. The evidence

is considered in the light most favorable to the judgment, “crediting favorable

evidence if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” Id.

18

In reviewing a factual sufficiency challenge, this Court considers and weighs

all of the evidence supporting and contradicting the challenged finding and sets aside

the finding only if the evidence is so weak as to make the finding clearly wrong and

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex,

Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

Defamation was the gravamen of the complaint and the only basis for

the jury’s damages finding. Claims for intentional infliction of

emotional distress and malicious prosecution were waived and do not

support damages.

The jury question on damages was directly linked only to the publication of

alleged statement, “Martin Longoria had stolen components of or contents inside the

Old Sneed Home.” CR 1052–53 (Question 19 “What sum of money, if paid now in

cash, would fairly and reasonably compensate Martin Longoria for his injuries, if

any, that were proximately caused by the statement in Question 14?”) Thus,

damages were requested only for the alleged publication of the statement found in

Question 14, not for the jury’s findings of intentional infliction of emotional distress

or for malicious prosecution which were submitted in Questions 12 and 13. CR

1052. Longoria waived his right to recover damages under any theory except

defamation. See TEX. R. CIV. P. 278 (failure to submit a jury question in substantially

correct form waives the complaint).

Further, where the gravamen of a complaint is really another tort (such as

defamation), intentional infliction of emotional distress is not an available cause of

19

action. Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).

The intentional infliction of emotional distress was, first and foremost, a “gap-filler”

tort, judicially created for the limited purpose of allowing recovery in those rare

instances in which a defendant intentionally inflicts severe emotional distress in a

manner so unusual that the victim has no other recognized theory of redress.

Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).

Nonetheless, under any theory of recovery, there is no evidence of injury to

reputation or mental anguish.

If more than nominal damages are awarded, then injury to reputation

and mental anguish damages must be supported by evidence of actual

injury.

Texas law presumes that defamatory per se statements cause reputational

harm and entitle a plaintiff to general damages such as loss of reputation and mental

anguish. Burbage, 447 S.W.3d at 256 (citing Bentley v. Bunton, 94 S.W.3d 561, 604

(Tex. 2002) (plurality opinion)). But this presumption yields only nominal damages.

Id. (citing Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam)).

Beyond nominal damages, the appellate court reviews presumed damages for

evidentiary support. Id. (citing Hancock, 400 S.W.3d at 66.)

Damages awarded for injury to reputation are not supported by the

evidence.

The Texas Supreme Court recently clarified the quality of evidence required

to demonstrate a compensable injury to reputation. Burbage, 447 S.W.3d at 259–

20

63. In Burbage, the Court determined that the plaintiff’s ballpark estimate of the

Burbage Funeral Home’s value does not equate to evidence of actual damages for

injury to the business’s reputation. The record contained only speculative evidence

that the value, if established, “would likely be lost.” Id. at 261. Questioned whether

the defamation could destroy the funeral home’s reputation, the plaintiff said:

“[P]otentially. In my opinion.” Id. The plaintiff said the value would be “zero” only

when questioned on what would happen if the funeral home was “run out of

business.” Id. The plaintiff’s brother, testified that, in a small community, such

allegations “can ruin that entire business.” The Court noted at a theoretical

possibility, however, is a far cry from a likely event. Id.

The Burbage opinion referred to the example case of Waste Management of

Texas, Inc. v. Texas Disposal Systems Landfill, Ltd., 434 S.W.3d 142 (Tex. 2014).

In that case, the key evidence of injury to Texas Disposal Systems’ reputation was

its CEO’s testimony estimating the value of its reputation at $10 million, and three

exhibits purportedly supported that testimony. Burbage, 447 S.W.3d at 260 (citing

Waste Management, 434 S.W.3d at 160.) The exhibits estimated lost profits and

evidenced a decrease in “base business.” Id. First, the Court held that damages such

as lost profits “are not the sort of general damages that necessarily flow from such a

defamatory publication.” Id. Then, the Court stated that the “evidence must support

21

the amount awarded by the jury; it must not be an ‘indicator’ that supports the

estimates offered by the corporate executive.” Id.

The Burbage opinion also referred to the example case of Hancock v.

Variyam, wherein a doctor claimed that the submission of a defamatory letter to an

accrediting body, which later denied the doctor accreditation, provided evidence of

reputation damages. Id. at 262 (citing Hancock, 400 S.W.3d at 70). The Texas

Supreme Court in Hancock held that “a jury may not reasonably infer an ultimate

fact from ‘meager circumstantial evidence which could give rise to any number of

inferences, none more probable than another.’” Id. at 70-71 (quoting Hammerly

Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). Similarly, in Burbage,

the Court determined that the jury cannot reasonably infer that defamation caused

the cancellations of business when the cancellations could have occurred for any

number of reasons. Indeed, the plaintiff in Burbage admitted that he did not ask why

the customers cancelled, only that he was “afraid” it was because of accusations. Id.

Suggestions of community awareness and other vague testimony about the impact

of the alleged defamatory statement does not support the award of compensatory

damages. Id.

Here, counsel for Longoria made it clear during trial that, “We are not asking

for, nor are we seeking in the jury charge to recover any economic damages.” RR

Vol. 8, 203. Longoria testified that he cannot identify one person who told him that

22

they would not hire him for reasons relating to the theft accusation or arrest. RR

Vol. 8, 202. No one has ever told him that they would not hire him because of the

arrest. No one has ever told him that his reputation was damaged in any way. RR

Vol. 8, 213–14. Here, the evidence on damages for injury to reputation does not

withstand the scrutiny of the Burbage analysis. There is simply no evidence of

compensable injury to reputation and no evidence to support the amount of $275,000

in injury to reputation damages in the past and $40,000 of injury to reputation

damages in the future.

Damages awarded for mental anguish are not supported by the

evidence.

Mental anguish damages cannot not be awarded without either “direct

evidence of the nature, duration, or severity of [plaintiff’s] anguish, thus establishing

a substantial disruption in the plaintiff’s daily routine”, or other evidence of “’a high

degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,

embarrassment, or anger’”. Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614

(Tex. 1996) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).

Not only must there be evidence of the existence of compensable mental

anguish, there must also be some evidence to justify the amount awarded. Id. While

the impossibility of any exact evaluation of mental anguish requires that juries be

given a measure of discretion in finding damages, that discretion is limited. Juries

cannot simply pick a number and put it in the blank. Id. They must find an amount

23

that, in the standard language of the jury charge, “would fairly and reasonably

compensate” for the loss. Compensation can only be for mental anguish that causes

“substantial disruption in... daily routine” or “a high degree of mental pain and

distress”. Id. (citing Parkway, 901 S.W.2d at 444). There must be evidence that the

amount found is fair and reasonable compensation, just as there must be evidence to

support any other jury finding. Id. Reasonable compensation is no easier to

determine than reasonable behavior—often it may be harder—but the law requires

factfinders to determine both. And the law requires appellate courts to conduct a

meaningful evidentiary review of those determinations. Id.

In this case, there is no evidence of the existence of compensable mental

anguish and there is no evidence to justify the amount awarded. In Saenz, the

plaintiff testified that she worried a lot, that her husband was already working two

jobs, and she was worried that they were going to lose their house, and she knew she

could not afford the medical bills that were coming in. Id. at 614. That testimony

was not sufficient to support the existence of compensable mental anguish or that

$250,000 would be fair and reasonable compensation. Id. Similarly here, Longoria

testified of emotional distress from the financial concerns, but there was no evidence

of financial hardship, and there was evidence that Longoria had substantial real

property interests in Mexico. RR Vol. 8, 215. The level of emotional distress did

not cause him any illness or physical symptoms. RR Vol. 8, 215. He testified that

24

he is in a bad mood sometimes, but he can still get up and do his daily activities and

it did not disrupt those daily activities. RR Vol. 8, 216. There is simply no evidence

of compensable mental anguish and no evidence to support the amount of $75,000

in mental anguish damages.

II. NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES MAY

BE AWARDED.

The general rule in Texas is that each party is responsible for his or her own

attorney’s fees. Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964). Texas follows

the “American Rule” that “litigants’ attorney’s fees are recoverable only if

authorized by statute or by a contract between the parties.” Intercont’l Grp. P’ship

v. KB Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009). Even for causes of

action for which attorney’s fees are potentially recoverable, there can be no award

of attorney’s fees without the award of actual damages. See Mancorp, Inc. v.

Culpepper, 802 S.W.2d 227, 230 (Tex. 1990); Holland v. Wal-Mart Stores, Inc., 1

S.W.3d 91, 94 (Tex. 1999). Regardless of the cause of action forming the basis for

attorney’s fees, “the bottom line is the same: As there was no award to the client,

there can be no attorney’s fee award either.” Intercont’l Grp. P’ship, 295 S.W.3d at

662. A suit for intentional infliction of emotional distress does not support an award

of attorney’s fees. See Hoffmann-La Roche Inc., 144 S.W.3d at 446.

Statutory provisions for the recovery of attorney fees are penal in nature, and

must be strictly construed. Id. Longoria did not request the jury to answer Question

25

8 on theft with an affirmative or negative finding. CR 1041. Question 8 was left

unanswered by the jury and the issue was waived by Longoria. Id.; TEX. R. CIV. P.

278. Thus, Longoria cannot rely upon the statutory provision involving theft as a

basis for the award of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 134.005.

The tort causes of action for intentional infliction of emotional distress, defamation,

and malicious prosecution do not support the award of attorney’s fees as a matter of

law. Further, even if attorney’s fees were somehow recoverable without actual

damages, Longoria’s counsel presented no evidence regarding attorneys’ fees other

than by stating that he had a one-third contingent fee agreement and he did not

apportion the fees between the causes of action on which attorney’s fees are

recoverable or delineate what factors were considered to establish reasonableness.

RR Vol. 8, 277. In this case, Longoria’s counsel did not indicate how many hours

were spent in the aggregate or were devoted to any particular task or category of

tasks. Longoria presented no time records or other documentary evidence. Nor did

Longoria’s counsel testify based on their recollection of such records. The court

could not discern from the evidence how many hours each of the tasks required and

whether that time was reasonable. Without at least some indication of the time spent

on various parts of the case, a court has little basis upon which to conduct a

meaningful review of the fee award. Longoria’s counsel simply suggested that the

jury should add one-third additional to whatever they award Longoria. Id. Further,

26

Longoria’s counsel made no attempt to justify appellate attorney’s fees. The jury’s

award of attorney’s fees does not correspond to Longoria’s counsel’s testimony and

is not recoverable in this case.

Moreover, the judgment does not award appellate attorney’s fees based upon

an unsuccessful appeal. Instead, the judgment includes appellate attorney’s fees

automatically and then gives a “credit” of $50,000 if the judgment is not appealed,

to the court of appeals and another “credit” of $20,000 if the judgment is not

appealed to the Supreme Court. CR 1084. This unconditional award of appellate

attorney’s fees is improper. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—

Houston [1st Dist.] 1983, no writ). There must be evidence of the reasonableness of

fees for appellate work to support the award of appellate attorney’s fees, and the trial

court must condition the award of attorney’s fees to an appellee upon the appellant’s

unsuccessful appeal. Id.

A party may not recover exemplary damages unless the party establishes

actual damages. Burbage, 447 S.W.3d at 263 (citing Hancock, 400 S.W.3d at 71).

An award of nominal damages is not sufficient to support exemplary damages. TEX.

CIV. PRAC. & REM. CODE § 41.004(a). Because no evidence supports the jury’s

award of actual damages, exemplary damages are not available.

27

III. NO REMAND FOR A DETERMINATION OF NOMINAL DAMAGES.

When the defamation case is reversed based upon no evidence of actual

damages, the court of appeals shall render judgment in favor of the defamation

defendant rather than remand for a determination of nominal damages. Burbage,

447 S.W.3d at 263 (citing MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292

S.W.3d 660, 666 (Tex. 2009) (recognizing that “where the record shows as a matter

of law that the plaintiff is entitled only to nominal damages, the appellate court will

not reverse merely to enable him to recover such damages” and instead rendering a

take-nothing judgment)).

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO

STRIKE JURORS CHALLENGED FOR CAUSE.

The Shamark Parties’ counsel moved to strike jurors 6, 8, 9, 10, 12, 13, 14,

24, 26, 31, 32, 33, 27, 49, 50, and 51 for cause based upon the jurors’ statements that

they could not apply the preponderance of the evidence to this case and would

instead require the Shamark Parties to prove that Longoria committed theft beyond

a reasonable doubt. RR Vol. 4, 136. The Shamark Parties’ counsel also moved to

strike jurors 8, 9, 12, 13, 24, 26, 31, 49 for cause based upon the jurors’ statements

that they would require a criminal conviction against Longoria before finding in

favor of the Shamark Parties on the issue of theft in this case. RR Vol. 4, 136. The

trial court denied the challenges for cause on both basis. RR Vol. 4, 141. The trial

28

court further denied the Shamark Parties’ request for additional strikes against the

jurors. RR Vol. 4, 142.

A person is disqualified to serve as a juror on a particular case if he or she has

a bias or prejudice in favor of or against one of the parties, TEX. GOV’T CODE §

62.105(4), or demonstrates “a general inability to follow the court’s instructions

regarding the law.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex.

2006); see TEX. R. CIV. P. 226a. If a prospective juror’s bias, prejudice, or inability

to follow the trial court’s instructions is established as a matter of law, the trial court

must disqualify that person from service. Malone v. Foster, 977 S.W.2d 562, 564

(Tex. 1998).

To disqualify a potential juror for bias or prejudice as a matter of law, the

record must conclusively show that the potential juror’s state of mind led to the

natural inference that he could not act with impartiality. See Hyundai Motor Co.,

189 S.W.3d at 751. Thus, a prospective juror who unequivocally admits bias or

prejudice is disqualified to serve as a juror as a matter of law. Shepherd v. Ledford,

962 S.W.2d 28, 34 (Tex. 1998); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10,

14 (Tex. App.—Dallas 1987, no writ).

When a prospective juror’s disqualification is not established as a matter of

law, the trial court must make a factual determination as to whether the prospective

juror is nevertheless sufficiently biased or prejudiced to merit disqualification. See

29

Sullemon, 734 S.W.2d at 15 (citing Swap Shop v. Fortune, 365 S.W.2d 151, 154

(Tex. 1963)). A trial court’s decision overruling a challenge for cause carries with

it an implied finding that bias or prejudice does not exist to the degree necessary to

warrant disqualification. Buls v. Fuselier, 55 S.W.3d 204, 209-10 (Tex. App.-

Texarkana 2001, no pet.).

“The key response that supports a successful challenge for cause is that the

veniremember cannot be fair and impartial because the veniremenber’s feelings are

so strong in favor of or against a party or against the subject matter of the litigation

that the veniremember’s verdict will be based on those feelings and not on the

evidence.” Buls, 55 S.W.3d at 210. The voir dire record is reviewed in relation to

the veniremembers in light of this standard, mindful of the fact that a veniremember

that is unequivocally biased or prejudiced “cannot revive his eligibility by recanting

an earlier expression of bias or prejudice.” Smith v. Dean, 232 S.W.3d 181, 190

(Tex. App.—Fort Worth 2007, pet. denied).

A trial court’s ruling on a challenge for cause is reviewed for abuse of

discretion. Hyundai Motor Co., 189 S.W.3d at 753–54. A trial court abuses its

discretion in refusing to disqualify a prospective juror for cause only if the record,

viewed in the light most favorable to the trial court’s ruling, shows that the venire

member was not able or willing to set aside personal beliefs to act impartially. Buls,

55 S.W.3d at 210.

30

In this case, there is no question that the jury was stacked against the Shamark

Parties. After substantial discussion with the jury on the differences between

burdens of proof for a “preponderance of the evidence” and “beyond a reasonable

doubt,” and then after more discussion with the trial court outside the presence of

the jury, counsel for the Shamark Parties followed up in his line of questioning by

explaining the definition of the term “preponderance of the evidence.” After having

clarifying the definition of “preponderance of the evidence” to satisfy the trial

court’s concern, the jurors thereafter confirmed that they would hold the Shamark

Parties to a higher burden of proof regardless of the trial court’s instruction on the

preponderance of the evidence. RR Vol. 4, 103. Sixteen potential jurors confirmed

their conviction that they would hold the Shamark Parties to a higher burden than

instructed by the court. Id. Three of those potential jurors became members of the

jury. Supp. CR 20–28. Thereafter, counsel for the Shamark Parties asked the clear

and critical question, “Would everyone or anyone require a criminal conviction in

order to award money in a civil case for theft?” RR Vol. 4, 108. Nine potential

jurors raised their hands in response to that question. Id. Two of those potential

jurors became members of this jury. Supp. CR 20–28.

This is not a case in which there was any confusion demonstrated by the

potential jurors. There was no individual voir dire of any juror to undermine their

purported understanding of the issues. In this case, rehabilitation was not

31

permissible to clarify whether a potential juror’s response results from confusion or

misunderstanding. Unlike the case in Murff, there were no statements by the

potential jurors that demonstrated that any of them had any confusion about the

questions being asked of them. See Murff v. Pass, 249 S.W.3d 407, 409 (Tex. 2008).

In Murff, although the potential juror indicated that he would hold Pass to a clear

and convincing standard of proof, it is apparent that the potential juror was confused

as to the definition of “preponderance of the evidence.” Id. at 411. No such

confusion was demonstrated by the potential jurors in this case and the definition of

“preponderance of the evidence” was provided so that the jurors could confirm their

answers from the earlier discussions of the standard of proof. RR Vol. 4, 103.

Further, the additional issue of requiring the Shamark Parties to prove a criminal

conviction against Longoria before they could find in favor of the Shamark Parties

in this case was not an issue in the Murff case or cases cited by Murff.

The jury was stacked against the Shamark Parties. If this case is not rendered

in favor of the Shamark Parties so that Longoria takes nothing on his claims because

of lack of evidence of damages, then the entire case should be reversed for a new

trial for factually insufficient evidence on damages and because the jury was

improperly empaneled.

32

V. CONCLUSION AND PRAYER.

Shamark Smith Limited Partnership, Paul J. Smith, and Sharon D. Marcus,

Appellants, request this Court to render judgment in favor of Appellants in whole or

in part, or remand this case for a new trial.

/s/ Tracy J. Willi

Tracy J. Willi

Texas Bar No. 00784633

Willi Law Firm, P.C.

9600 Escarpment Blvd., Suite 745, PMB 34

Austin, TX 78749-1983

Tel. (512) 288-3200

Fax (512) 288-3202

twilli@willi.com

ATTORNEY FOR SHAMARK SMITH

LIMITED PARTNERSHIP, SHARON D.

MARCUS, AND PAUL J. SMITH

CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, I hereby certify

that this document contains 8457 words.

/s/ Tracy J. Willi

Tracy J. Willi

33

CERTIFICATE OF FILING AND SERVICE

I hereby certify that this document was filed with Clerk of Court through the

Court’s electronic filing system and served on opposing counsel by the same manner

on April 6, 2015 as follows:

James David Walker

P.O. Box 41

Milano, Texas 76556

(512) 636-9520

(512) 455-7992 (fax)

walker@2appeal.com

Counsel for Martin Longoria

/s/ Tracy J. Willi

Tracy J. Willi

34

Appendix 1

CAUSE NO. 32,515

SHAMARK SMITH LIMITED, Partnership IN THE 20TH JUDICIAL

Plaintiff

vs. DISTRICT COURT OF

MARTIN M. LONGORIA

Defendant MILAM COUNTY, TEXAS

FINAL JUDGMENT

On July 28, 2014, came on to be heard the trial of this cause. A jury was duly empaneled

and evidence heard. At the conclusion of the evidence, the Court submitted the case to the jury.

The Charge of the Court, including the jury's answers to the questions propounded therein, are

incorporated into this Final Judgment for all purposes.

After the jury returned its unanimous verdict, Defendant/Counter Plaintiff, Martin M.

Longoria, moved for judgment.

The jury unanimously found that neither Martin M. Longoria, nor any of his agents or

employees, committed a conversion of any property, materials or items owned by Shamark

Smith Limited Partnership, Sharon D. Marcus or Paul J. Smith.

The jury unanimously found that neither Martin M. Longoria , nor any of his agents or

employees, trespassed on the real property owned by Shamark Smith Limited Partnership,

Sharon D. Marcus or Paul J. Smith.

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith

Limited Partnership maliciously prosecuted Martin M. Longoria.

FINAL JUDGMENT PAGEi

08.05.2014

1082

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith

Limited Partnership intentionally inflicted severe emotional distress on Martin M. Longoria.

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith

Limited Partnership published factual statements about Martin M. Longoria which were

defamatory (as defined in the Charge of the Court), that such statements were false, that Paul J.

Smith, Sharon D. Marcus and Shamark Smith Limited Partnership should have known, in the

exercise of ordinary care, that the statements were false and had the potential to be defamatory,

and that they knew such statements were false or that they were made with a high degree of

awareness that they were probably false, to an extent that they in fact had serious doubts as to the

truth of the statements.

The jury also unanimously found, by clear and convincing evidence, that Paul J. Smith,

Sharon D. Marcus and Shamark Smith Limited Partnership acted with "malice," which was

defined in the Charge of the Court as a specific intent by Paul J. Smith, Sharon D. Marcus and

Shamark Smith Limited Partnership, to cause substantial injury or harm to Martin M. Longoria

and that such action resulted in harm to him.

The unanimous verdict of the jury totals $703,000, upon which the Court will render

judgment as set forth below.

The Court, having considered the jury's unanimous verdict, finds that judgment should be

rendered against Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited Partnership, and

in favor of Martin M. Longoria as follows:

It is Ordered that Martin M. Longoria have judgment and recover from Paul J. Smith the

amount of $120,000, in connection with actual damages found by the jury for which let

FINAL JUDGMENT PAGE2

08.05.2014

1083

execution issue.

It is Ordered that Martin M. Longoria have judgment and recover from Sharon D. Marcus

the amount of $120,000 in connection with actual damages found by the jury for which let

execution issue.

It is Ordered that Martin M. Longoria have judgment and recover from Shamark Smith

Limited Partnership the amount of $150,000 in connection with actual damages found by the

jury for which let execution issue.

It is Further Ordered that Martin M. Longoria have judgment and recover from Paul J.

Smith the additional amount of $30,000.00, referable to exemplary damages, for which let

execution issue.

It is Further Ordered that Martin M. Longoria have judgment and recover from Sharon D.

Marcus $30,000.00, referable to exemplary damages, for which let execution issue.

It is Further Ordered that Martin M. Longoria have judgment and recover from Shamark

Smith Limited Partnership $40,000.00, referable to exemplary damages, for which let execution

issue.

It is Further Ordered that Martin Longoria and his attorneys, Mickey Blanks and Bill

Torrey, have and recover from Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited

Partnership, jointly and severally, attorney's fees in the sum of $213,000 for services rendered in

this case, and it is the further judgment of the court that if this cause is not appealed, the

judgment shall be credited with $50,000 as attorney's fees; but if this judgment is appealed to the

Court of Appeals but not to the Supreme Court of Texas that this judgment shall be credited with

$20,000 as attorney's fees.

FINAL JUDGMENT PAGE3

08.05.2014

1084

It is Further Ordered that all amounts of the judgment here rendered will bear interest at

the rate of five percent (5%) from date of judgment until paid.

All costs of Court spent or incurred in this cause are adjudged against Paul J. Smith,

Sharon D. Marcus and Shamark Smith Limited Partnership, jointly and severally.

All writs and processes for the enforcement and collection of this judgment and costs of

Court may issue as necessary.

All relief requested in this case and not expressly granted is denied. This judgment finally

disposes of all parties and claims and is appealable.

SIGNED ON THIS THE /9-fL '2014

GE PRESIDING

FILED

At 8: 00 o'clock~M

AUG 18 2014 ~

~~-1.t.~

GI

cu; •

~~er

l'l!CHNE!R

TEXAS

MILAM COUIVTY,

FINAL JUDGMENT PAGE4

08.05.2014

1085

Appendix 2

CAUSE NO. 32,515

SHAMARK SMITH LIMITED IN THE DISTRICT COURT

PARTNERSHIP,

Plaintiff

20 1h JUDICIAL DISTRICT

vs.

MARTIN M. LONGORIA,

Defendant. MILAM COUNTY, TEXAS

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JtJRY:

After the closing arguments. you will go to the jury room to decide the case, answer the

questions that are attached, and reach a verdict. You may discuss the case with other jurors only

when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else. either in

person or by any other means. Do not do any independent investigation about the case or conduct

any research. Do not look up any words in dictionaries or on the Internet. Do not post information

about the case on the Internet. Do not share any special knowledge or experiences with the other

jurors. Do not use your phone or any other electronic device during your deliberations for any

reason. I will give you a number where others may contact you in case of an emergency.

Any notes you have taken are for your own personal use. You may take your notes back into

the jury room and consult them during deliberations, but do not show or read your notes to your

fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on

your independent recollection of the evidence and not be influenced by the fact that another juror

has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will

give your notes to me promptly after collecting them from you. I will make sure your notes are kept

in a safe. secure location and not disclosed to anyone. After you complete your deliberations. the

bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly

destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions.

1. Do not let bias. prejudice. or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in

these instructions and questions. Do not consider or discuss any evidence that was

not admitted in the courtroom.

FILED

Page 1 of 29 At ~; 65"o'clock _f_M

AUG 0 l 2014 ~

II: ~(k~ 1031

~TNlf? FECHNER

OISfR!CT a.ERK, MILAM COUNTY, TEXAS

3. You are to make up your own minds about the facts. You are the sole judges of the

credibility of the witnesses and the weight to give their testimony. But on matters of law.

you must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning. use

the meaning I give you. which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or

answer is not important.

6. Answer "yes" or ""no·· to all questions unless you are told otherwise. A '"yes'" answer

must be based on the preponderance of the evidence unless you are told otherwise.

Whenever a question requires an answer other than ·'yes" or '"no," your answer must be

based on a preponderance of the evidence unless you are told otherwise.

The term "'preponderance of the evidence·· means the greater weight of credible evidence

admitted in this case. If you do not find that a preponderance of the evidence supports a

'·yes"' answer. then answer "no.'" A preponderance of the evidence is not measured by

the number of witnesses or the number of documents admitted in evidence. For a fact to

be proved by a preponderance of the evidence. you must find that the fact is more likely

true than not true.

7. Do not decide who you think should win before you answer the questions and then just

answer the questions to match your decision. Answer each question carefully without

considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions may ask you for a dollar amount. Do not agree in advance to decide on a

dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example. do not say. '·I will answer this question your

way if you answer another question my way."'

11. Unless otherwise instructed, the answers to the questions must be based on the decision

of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do

not agree to be bound by a vote of anything less than ten jurors. even if it would be a

majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror

misconduct. and I might have to order a new trial and start this process over again. That would

waste your time and the parties· money. and would require the taxpayers of this county to pay for

another trial. If a juror breaks any of these rules. tell that person to stop and report it to me

immediately.

Page 2 of29

1032

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is

established by direct evidence when proved by documentary evidence or by witnesses who saw the

act done or heard the words spoken. A fact is established by circumstantial evidence when it may be

fairly and reasonably inferred from other facts proved.

Page 3 of 29

1033

Question l

Did Martin M. Longoria or any of his agents or employees commit a conversion of any property.

materials. or items owned by Shamark Smith Limited Partnership, Sharon D. Marcus, or Paul J.

Smith?

You are instructed that "conversion" occurs if (1) Shamark Smith Limited Partnership, Sharon D.

Marcus, or Paul J. Smith beneficially owned any property, materials, or items; and (2) Martin M.

Longoria or any of his agents or employees wrongfully exercised dominion or control over the

property, materials, or items to the injury of Shamark Smith Limited Partnership, Sharon D.

Marcus, or Paul J. Smith.

Answer '"Yes'' or "No":

Answer: ~

Page 4 of29

1034

If you answered "Yes" to Question l, then answer the following question. Otherwise, do not answer

the following question.

Question 2

What sum of money, if paid now in cash, would fairly and reasonably compensate Shamark

Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith for the damages, if any, that

were proximately caused by the conversion(s)?

Consider the elements of damages listed below and none other. Consider each element

separately. Do not reduce the amount, if any, in your answers because of the wrongdoing, if any, of

Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or Paul J. Smith. Any recovery will be

determined by the court when it applies the law to your answers at the time of judgment.

I. Loss of market value.

Find the market value of the property, materials, or items in question in Milam County,

Texas as of the date of the conversion(s). if any.

"Market value" means the amount that would be paid in cash by a willing buyer who desires

to buy. but is not required to buy, to a willing seller who desires to sell, but is under no

necessity of selling.

Answer in dollars and cents for damages. if any.

2. Cost of repairs or restoration of the Old Sneed Home to its former condition.

Consider the reasonable cost in Milam County, Texas. to restore the Old Sneed Home to the

condition it was immediately before the occurrence in question.

Answer in dollars and cents for damages. if any.

3. Loss of use.

"'Loss of use"" damages compensate Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or

Paul J. Smith for their lost profits sustained in the past.

Answer in dollars and cents for damages. if any.

Page 5 of 29

1035

Question 3

Did Martin M. Longoria or any of his agents or employees trespass on the real property belonging

to Shamark Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith?

Trespass to real property is defined as an unauthorized entry upon the land of another. Every

unauthorized entry is a trespass even if no damage is done. A trespass can be either by entry

of a person on another's land or by causing or permitting a thing to cross the boundary of the

premises.

Answer "Yes'" or ''No."

Answer:

Page 6 of29

1036

If you answered "Yes" to Question 3. then answer the following question. Otherwise, do not answer

the following question.

Question 4

What sum of money. if paid now in cash. would fairly and reasonably compensate Shamark

Smith Limited Partnership. Sharon D. Marcus. and/or Paul J. Smith for the damages, if any. that

were proximately caused by the trespass?

Consider the elements of damages listed below and none other. Consider each element

separately. Do not reduce the amount. if any. in your answers because of the wrongdoing. if any. of

Shamark Smith Limited Partnership. Sharon D. Marcus, and/or Paul J. Smith. Any recovery will be

determined by the court when it applies the law to your answers at the time of judgment.

1. Loss of market value.

Find the market value of the property. materials. or items in question in Milam County,

Texas as of the date of the conversion(s). if any.

"Market value" means the amount that would be paid in cash by a willing buyer who desires

to buy. but is not required to buy, to a willing seller who desires to sell. but is under no

necessity of selling.

Answer in dollars and cents for damages, if any.

Answer: _ _ _ _ _ _ __

2. Cost ofrepairs or restoration of the Old Sneed Home to its former condition.

Consider the reasonable cost in Milam County. Texas. to restore the Old Sneed Home to the

condition it was immediately before the occurrence in question.

Answer in dollars and cents for damages. if any.

Answer: - - - - - - - -

3. Loss of use.

·'Loss of use·· damages compensate Shamark Smith Limited Partnership. Sharon D. Marcus. and/or

Paul J. Smith for their lost profits sustained in the past.

Answer in dollars and cents for damages. if any.

Answer: - - - - - - - - -

Page 7 of29

1037

Answer the following question only if you unanimously answered ''Yes·· to Questions 1 or 3.

Otherwise. do not answer the following question.

Question 5

To answer '·Yes'· to any part of the following question, your answer must be unanimous. You may

answer ·'No'' to any part of the following question only upon a vote of ten or more jurors.

Otherwise, you must not answer that part of the following question.

Do you find by clear and convincing evidence that the harm to Shamark Smith Limited

Partnership. Sharon D. Marcus. and/or Paul J. Smith resulted from malice?

''Clear and convincing evidence'' means the measure or degree of proof

that produces a firm belief or conviction of the truth of the allegations

sought to be established.

"Malice" means a specific intent by Martin M. Longoria or any of his agents

or employees to cause substantial injury or harm to Shamark Smith Limited

Partnership. Sharon D. Marcus, and/or Paul J. Smith.

Answer .. Yes" or '·No ...

Page 8 of29

1038

Answer the following question only if you unanimously answered "Yes'' to Questions l or 3.

Otherwise, do not answer the following question.

Question 6

To answer "Yes'' to any part of the following question, your answer must be unanimous. You may

answer ·'No" to any part of the following question only upon a vote of ten or more jurors.

Otherwise, you must not answer that part of the following question.

Do you find by clear and convincing evidence that the harm to Shamark Smith Limited

Partnership, Sharon D. Marcus. and/or Paul J. Smith resulted from gross negligence?

"Clear and convincing evidence" means the degree or measure of proof that produces a

firm belief or conviction of the truth of the allegations sought to be established.

"Gross negligence" means an act or omission by Martin M. Longoria or any of his agents

or employees,

(a) which when viewed objectively from the standpoint of Martin M. Longoria

or any of his agents or employees at the time of its occurrence involves an

extreme degree of risk, considering the probability and magnitude of its

potential harm to others; and

(b) of which Martin M. Longoria or any of his agents or employees has actual,

subjective awareness of the risk involved, but nevertheless proceeds with

conscious indifference to the rights, safety, or welfare of others.

Answer "Yes" or "No."

Answer: - - - - - - - -

Page 9 of29

1039

Answer the following question only if you unanimously answered "Yes·· to Question 5 or 6.

Otherwise. do not answer the following question.

You must unanimously agree on the amount of any award of exemplary damages.

Question 7

What sum of money. if any. if paid now in cash. should be assessed against Martin M.

Longoria and awarded to Shamark Smith Limited Partnership. Sharon D. Marcus. and/or Paul J.

Smith as exemplary damages. if any, for the conduct found in response to Question 5 or 6?

'"Exemplary damages" means an amount that you may in your discretion award as a

penalty or by way of punishment.

Factors to consider in awarding exemplary damages, if any, are-

a. The nature of the wrong.

b. The character of the conduct involved.

c. The degree of culpability of Martin M. Longoria.

d. The situation and sensibilities of the parties concerned.

e. The extent to which such conduct offends a public sense of justice and

propriety.

f. The net worth of Martin M. Longoria.

Answer in dollars and cents. if any.

Answer: - - - - - - - - -

Page 10 of29

1040

Question 8

Answer the following question only if you unanimously answered '·Yes" to Question 1. Otherwise.

do not answer the following question.

To answer '·Yes .. to any part of the following question, your answer must be unanimous. You may

answer "No·· to any part of the following question only upon a vote of ten or more jurors.

Otherwise. you must not answer that part of the following question.

Did Martin M. Longoria or any of his agents or employees commit '"Theft", and was the

value of the stolen property $20.000.00 or greater?

"'Theft'" means that a person unlawfully appropriates property with the intent to deprive

the owner of property. Appropriating property is unlawful if it is without the owner"s

effective consent.

A person acts with intent with respect to the nature of his conduct or to a result of his

conduct when it is the conscious objective or desire to engage in the conduct or cause the

result.

""Deprive" means to ·withhold property from the owner permanently or for so extended

a period o.f time that a mc{jor portion (?f the value or enjoyment <~f the property is lost to

the owner.

'"Owner·· means a person who has title to the property. possession of the property.

whether lawful or not or a greater right to possession of the property than Martin M

Longoria or any <d.his al{ents or employees.

'"Property .. means anything of value.

""Consent'' means assent in fact. whether express or implied.

""Effective consent"" includes consent by a person legally authorized to act for the owner.

Consent is not effective if induced by deception or coercion.

Answer '"Yes .. or '"No.'"

Answer: - - - - - - - -

Page 11 of29

1041

Answer the following question only if you answered '"Yes" to Question 8. Otherwise. do not answer

the following question.

Question 9

What is a reasonable fee for the necessary services of Shamark Smith Limited Partnership

and Sharon D. Marcus' attorneys stated in dollars and cents?

Factors to consider in determining a reasonable fee include:

(l) the time and labor required. the novelty and difficulty of the questions involved. and

the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other

employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience. reputation. and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection

before the legal services have been rendered.

Answer with an amount for each of the following:

a. For representation in the trial court.

Answer: -------

b. For representation through appeal to the Court of Appeals.

Answer: -------

c. For representation through appeal to the Supreme Court of Texas.

Answer: - - - - - - -

Page 12 of29

1042

Answer the following question only if you answered "'Yes"' to Question 8. Otherwise, do not answer

the following question.

Question 10

What is a reasonable fee for the necessary services of Paul J. Smith's attorney, stated in

dollars and cents?

Factors to consider in determining a reasonable fee include:

( 1) the time and labor required. the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other

employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience. reputation. and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection

before the legal services have been rendered.

Answer with an amount for each of the following:

a. For representation in the trial court.

Answer: - - - - - - -

b. For representation through appeal to the Court of Appeals.

Answer: - - - - - - -

c. For representation through appeal to the Supreme Court of Texas.

Answer:

Page 13 of29

1043

Answer the following question only if you answered ''No" to Question 8. Otherwise, do not answer

the following question.

Question 11

What is a reasonable fee for the necessary services of Martin M. Longoria' s attorneys, stated

in dollars and cents?

Factors to consider in determining a reasonable fee include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other

employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection

before the legal services have been rendered.

Answer with an amount for each of the following:

a. For representation in the trial court.

~ oo

Answer: .., , 3 O()O.

1

b. For representation through appeal to the Court of Appeals .

.,~ ...0

Answer: 001 OO() •

c. For representation through appeal to the Supreme Court of Texas.

Answer: ~D,000.

, oo

Page 14 of29

1044

Question 12

Did Paul J. Smith. Sharon D. Marcus. and/or Shamark Smith Limited Partnership

maliciously prosecute Martin Longoria?

'"Malicious prosecution'" occurs when one person m1t1ates or procures. with malice. and

without probable cause at the time the prosecution is commenced. the prosecution of an

innocent person.

"Malice·· means ill will. bad or evil motive. or such gross indifference to the rights of others

as to amount to a willful or wanton act.

"Probable cause'' means the existence of such facts and circumstances as would excite belief

in a person of reasonable mind, acting on the facts or circumstances within his knowledge at

the time the prosecution was commenced. that the other person was guilty of a criminal

offense. The probable cause determination asks whether a reasonable person would believe

that a crime had been committed given the facts as the complainant honestly and reasonably

believed them to be before the criminal proceedings were instituted.

Answer "Yes" or '"No" as to Paul J. Smith.

~------

Answer: __\[_.....e...

Answer "Yes·' or ··No" as to Sharon D. Marcus

Answer: _ _,Ll....-t...s~----

Answer "Yes" or '"No" as to Shamark Smith Limited Partnership

Answer: --~_._,,e!:>~----

Page 15 of29

1045

Question 13

Did Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership intentionally

inflict severe emotional distress on Martin Longoria? s h."""'9"" rn~ ti" c.rs) v-.J... (J -

h,,..~l-

Intentional infliction of emotional distress occurs when the det dant acts mtent1ona r

recklessly with extreme and outrageous conduct to cause the emotional distress and

the emotional distress suffer.ed. by th@ plaintiff was severe. t" ~f

,,_,.p ...

~

. n~ ~ ....

I ,.~,..ti'"' ~,...~,.I - . .

"Extreme and outr geo s conduce occurs only where t econ uct has been so out geous in

character, and so extreme in degree. as to go beyond all possible bounds of decency. and to

be regarded as atrocious, and utterly intolerable in a civilized community.

Answer ''Yes·· or ..No'' as to Paul J. Smith.

Answer: _ _l}~e._5,_____

Answer .. Yes·· or "No'" as to Sharon D. Marcus

Answer: __Y_._..e.....5____

Answer ''Yes·· or ··No"' as to Shamark Smith Limited Partnership

Answer: \.f f..S

--~-=----

Page 16 of29

1046

Question 14

Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership publish the

following statement: that Martin Longoria had stolen components of or contents inside the Old

Sneed Home?

"'Publish"' means intentionally or negligently to communicate the matter to a person other

than Martin Longoria who is capable of understanding its meaning and may be made orally

or in writing.

Answer "Yes·· or ··No'" as to Paul J. Smith.

Answer: ___'-1.""e...,,s,,J.____ _

Answer ··Yes·· or ··No" as to Sharon D. Marcus

Answer: ___\{~t5...,_ ___

Answer '·Yes·· or "No"' as to Shamark Smith Limited Partnership

Answer: ---~~es

_____

Page 17 of29

1047

If you answered "Yes" in Question 14 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark

Smith Limited Partnership, then answer the following question as to that respective party.

Otherwise, do not answer the following question.

Question 15

Was the statement in Question 14 defamatory concerning Martin Longoria?

"Defamatory'' means an ordinary person would interpret the statement in a way that tends to

injure a living person· s reputation and thereby expose the person to public hatred, contempt

or ridicule. or financial injury or to impeach the person's honesty, integrity, virtue, or

reputation.

In deciding whether a statement is defamatory, you must construe the statement as a whole

and in light of the surrounding circumstances based upon how a person of ordinary

intelligence would perceive it.

Answer "Yes'' or ''No" as to Paul J. Smith.

Answer:

Answer ·'Yes'' or "No" as to Sharon D. Marcus

Answer:

Answer "Yes" or '·No" as to Shamark Smith Limited Partnership

Answer: _ _\/~e 5...

_____

Page 18 of29

1048

If you answered ''Yes" in Question 15 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark

Smith Limited Partnership. then answer the following question as to that respective party.

Otherwise. do not answer the following question.

Question 16

Do you find that the statement that Martin Longoria had stolen components of or contents inside the

Old Sneed Home was false at the time it was made as it related to Martin Longoria?

"False·· means that a statement is not literally true or not substantially true. A statement is

not ··substantially true·· if. in the mind of the average person, the gist of the statement is

more damaging to the person affected by it than a literally true statement would have been.

Answer '·Yes"' or ··No" as to Paul J. Smith.

Answer: ~es

Answer ''Yes'" or "No"' as to Sharon D. Marcus

Answer: --~_.__..f.S~---

Answer "Yes·· or '·No'" as to Shamark Smith Limited Partnership

Answer:

Page 19 of29

1049

If you answered "'Yes" in Question 16 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark

Smith Limited Partnership, then answer the following question as to that respective party.

Otherwise. do not answer the following question.

Question 17

Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership know or should

they have known, in the exercise of ordinary care. that the statement contained in Question 14 was

false and had the potential to be defamatory?

"Ordinary care" concerning the truth of the statement and its potential to be defamatory

means that degree of care that would be used by a person of ordinary prudence under the

same or similar circumstances.

Answer ""Yes·· or ··No'' as to Paul J. Smith.

Answer: --~~e.S~---

.

Answer "Yes"' or "No" as to Sharon D. Marcus

Answer: --~~es

_____

Answer ''Yes"' or "No" as to Shamark Smith Limited Partnership

Answer:

Page 20 of29

1050

If you answered "Yes" in Question 17 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark

Smith Limited Partnership. then answer the following question as to that respective party.

Otherwise, do not answer the following question.

Question 18

Do you find by clear and convincing evidence that, at the time Paul J. Smith. Sharon D. Marcus,

and/or Shamark Smith Limited Partnership made the statement in Question 14:

1. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership knew it was

false as it related to Martin Longoria, or

2. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership made the

statement with a high degree of awareness that it was probably false. to an extent that Paul J.

Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership in fact had serious

doubts as to the truth of the statement?

"'Clear and convincing evidence" is that measure or degree of proof that will produce

in the mind of the jury a firm belief or conviction as to the truth of the allegations

sought to be established.

Answer "Yes'' or "No" as to Paul J. Smith.

Answer: ~e...s

Answer ''Yes" or "No'' as to Sharon D. Marcus

Answer: _ _Y_._.es

____

Answer "Yes'' or '"No" as to Shamark Smith Limited Partnership

Answer:

Page 21 of29

1051

If you answered '·Yes" in Question(s) 12, 13, or 18 as to Paul J. Smith, Sharon D. Marcus, and/or

Shamark Smith Limited Partnership, then answer the following question as to that respective party.

Otherwise, do not answer the following question.

Question 19

What sum of money, if paid now in cash, would fairly and reasonably compensate Martin Longoria

for his injuries, if any, that were proximately caused by the statement in Question 14?

Consider the elements of damages listed below and none other. Consider each element separately.

Do not award any sum of money on any element if you have otherwise, under some other element

awarded a sum of money for the same loss.

That is, do not compensate twice for the same loss, if any. Do not include interest

on any amount of damages you find.

Answer separately in dollars and cents for damages, if any.

a. Injury to reputation sustained in the past.

Answer as to Paul J. Smith:

Answer:

,f

q (),• O{>() ~

.

Answer as to Sharon D. Marcus:

Answer: ~O., O{)O. 01>

Answer as to Shamark Smith Limited Partnership:

u DO

Answer: 0

'15, 0()().

b. Injury to reputation that, in reasonable probability, Martin Longoria will sustain in the future.

Answer as to Paul J. Smith:

9

.JI oo

Answer: / (J., (){)().

Answer as to Sharon D. Marcus:

Answer: 6io, 000. o-o

Answer as to Shamark Smith Limited Partnership:

Answer: 4-;o,

__ ooo. 0°

t?"t _,_____ _

Page 22 of29

1052

c. Mental anguish sustained in the past.

Answer as to Paul J. Smith:

Answer:

4c;lO., 000. oo

-

•

Answer as to Sharon D. Marcus:

Answer: .j~f>., 0()(). ~

Answer as to Shamark Smith Limited Partnership:

Answer:

"'.34-0 00 oo

.q :"'""'

d. Mental anguish that, in reasonable probability. Martin Longoria will sustain in the future.

Answer as to Paul J. Smith:

-o-

Answer: - - - - - - -

Answer as to Sharon D. Marcus:

Answer: -()-

-------

Answer as to Shamark Smith Limited Partnership:

Answer: -O-

Page 23 of29

1053

Answer the following question only if you unanimously answered "Yes" to Question(s) 12, 13. or

18. Otherwise. do not answer the following question.

Question 20

To answer ''Yes" to any part of the following question, your answer must be unanimous. You may

answer '"No" to any part of the following question only upon a vote of ten or more jurors.

Otherwise, you must not answer that part of the following question.

Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted

from malice?

"Clear and convincing evidence'' means the measure or degree of proof

that produces a firm belief or conviction of the truth of the allegations

sought to be established.

"Malice" means a specific intent by Shamark Smith Limited Partnership,

Sharon D. Marcus, and/or Paul J. Smith or any of his agents or employees to

cause substantial injury or harm to Martin M. Longoria

Answer "'Yes" or "No'' as to Paul J. Smith.

Answer: --~.....e~s____

Answer "Yes" or '"No" as to Sharon D. Marcus

Answer: \./es

Answer "Yes" or "No" as to Shamark Smith Limited Partnership

Answer: _ _l/~eo~---

Page 24 of29

1054

Answer the following question only if you unanimously answered ·'Yes" to Question 20. Otherwise,

do not answer the following question.

Question 21

To answer .. Yes" to any part of the following question, your answer must be unanimous. You may

answer "No'' to any part of the following question only upon a vote of ten or more jurors.

Otherwise. you must not answer that part of the following question.

Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted

from fraud?

"Clear and convincing evidence" means the measure or degree of proof

that produces a firm belief or conviction of the truth of the allegations

sought to be established.

'·Fraud'' occurs when:

1. A party makes a material misrepresentation, and

2. The misrepresentation is made with knowledge of its falsity or made

recklessly without any knowledge of the truth and as a positive assertion;

and

3. The misrepresentation is made with the intention that it should be acted

on by the other party; and

4. The other party relies on the misrepresentation and thereby suffers

mJury.

"Misrepresentation" means a false statement of fact.

Answer '·Yes'' or "No" as to Paul J. Smith.

Answer:

Answer .. Yes" or ..No" as to Sharon D. Marcus

Answer: _ _Y_.__e.....5,_____

Answer ··Yes" or '"No .. as to Shamark Smith Limited Partnership

Answer: _ _l{---"'-"e__~c;'--------

Page 25 of29

1055

Answer the following question only if you unanimously answered ·•yes'' to Question 21. Otherwise.

do not answer the following question.

You must unanimously agree on the amount of any award of exemplary damages.

Question 22

What sum of money. if any. if paid now in cash, should be assessed against Shamark Smith

Limited Partnership, Sharon D. Marcus. and/or Paul J. Smith and awarded to Martin M. Longoriao/p

as exemplary damages, if any. for the conduct found in response to Question~ or ,;-l? \

··Exemplary damages" means an amount that you may in your discretion award as a

penalty or by way of punishment.

Factors to consider in awarding exemplary damages, if any. are-

a. The nature of the wrong.

b. The character of the conduct involved.

c. The degree of culpability of Shamark Smith Limited Partnership, Sharon D.

Marcus. and/or Paul J. Smith.

d. The situation and sensibilities of the parties concerned.

e. The extent to which such conduct offends a public sense of justice and

propriety.

f. The net worth of Shamark Smith Limited Partnership. Sharon D. Marcus.

and/or Paul J. Smith.

Answer in dollars and cents. if any.

Answer as to Paul J. Smith:

Answer: ".ao,• 00(). 00

Answer as to Sharon D. Marcus:

Answer: $30, {)()(). ~

•

Answer as to Shamark Smith Limited Partnership:

J/,,11 00

Answer: rtJ, 000 •

'

Page 26 of29

1056

When you go into the jury room to answer the questions, the first thing you will need to do is

choose a presiding juror.

The presiding juror has these duties:

1. have the complete charge read aloud if it will be helpful to your deliberations;

2. preside over your deliberations, meaning manage the discussions, and see that you follow

these instructions;

3. give written questions or comments to the bailiff who will then give them to the judge;

4. write down the answers that you agree on:

5. get the signatures for the verdict certificate: and

6. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Unless otherwise instructed, you may answer the questions on a vote of 10 jurors. The same

10 jurors must agree on every answer in the charge. This means you may not have one group of l 0

jurors agree on one answer and a different group of 10 jurors agree on another answer.

If 10 jurors agree on every answer. those l 0 jurors sign the verdict.

If all 12 of you agree on every answer. you are unanimous and only the presiding juror signs

the verdict.

All jurors should deliberate on every question. You may end up with all 12 of you agreeing

on some answers. while only 10 or 11 of you agree on other answers. But when you sign the

verdict, only those 10 who agree on every answer will sign the verdict.

There are some special instructions before Questions 5, 6, 7, 8 and 22 explaining how to

answer those questions. Please follow the instructions. If all 12 of you answer those questions, you

will need to complete a second verdict certificate for those questions.

Do you understand these instructions? If you do not, please tell me now.

Page 27 of29

1057

Verdict Certificate

Check one:

I Our verdict is unanimous. All 12 of us have agreed to each and every answer. The presiding

juror has signed the certificate for all 12 of us.

J(,ld~ S helo..rvl.er

Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have

signed the certificate below.

Our verdict is not unanimous. Ten of us have agreed to each and every answer and have

signed the certificate below.

SIGNATURE NAME PRINTED

FILED

At ~;IS: o'clock_/!_M

AUG 0 12014 !!/

Page 28 of29

&t t!hnW

IJh,.C~fECHNER

OIS1'1\lc:T WRIC, Mii.AM C:OUKTY, TEXAS

1058

If you have answered Questions 5. 6. 7. 8 and/or 22. then you must sign this certificate also.

ADDITIONAL CERTIFICATE

I certify that the jury was unanimous in answering Question No. 5. All twelve of us agreed

to the answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror

I certify that the jury was unanimous in answering Question No. 6. All twelve of us agreed

to the answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror

I certify that the jury was unanimous in answering Question No. 7. All twelve of us agreed

to the answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror

I certify that the jury was unanimous in answering Question No. 8. All twelve of us agreed

to the answer. The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name of Presiding Juror

I certify that the jury was unanimous in answering Question No. 22. All twelve of us agreed

to the answer. The presiding juror has signed the certificate for all twelve of us.

FILED

At R: IS- o'clock _f!_M

AUG 0 l 2014 lf>

Page 29 of29 ~C~&t~

Ft!Cl-fN!!iR

DISTIUC'I' CLfRI<, MlWI COUN'IY, TfXAS

1059

Appendix 3

BURBAGE v. BURBAGE Tex. 249

Cite as 447 S.W.3d 249 (Tex. 2014)

2. Libel and Slander O93, 101(4)

Allen Chadwick BURBAGE, Petitioner

The qualified privilege against defa-

and Cross–Respondent,

mation liability when the communication is

v. made in good faith and the author, recipi-

W. Kirk BURBAGE and Burbage ent, or a third person, or one of their

Funeral Home, Respondents family members has an interest that is

and Cross–Petitioners. sufficiently affected by the communication

operates as an affirmative defense in the

No. 12–0563.

nature of confession and avoidance; the

Supreme Court of Texas. defendant bears the burden of proving

Argued Jan. 9, 2014. privileged publication unless the plaintiff’s

petition affirmatively demonstrates privi-

Delivered Aug. 29, 2014. lege.

Background: Owner of family funeral

home brought action against his brother 3. Libel and Slander O101(4)

for defamation. The 21st Judicial District

If a defendant establishes a qualified

Court, Bastrop County, Terry L. Flennik-

privilege against defamation liability when

en, J., entered judgment in favor of owner

the communication is made in good faith

on jury verdict of nearly $10 million in

and the author, recipient, or a third per-

compensatory and exemplary damages,

son, or one of their family members has an

and the trial court permanently enjoined

interest that is sufficiently affected by the

brother from publishing like statements.

communication, the burden shifts to the

Brother appealed. The Austin Court of

plaintiff to prove that the defendant made

Appeals, Jeff Rose, J., 447 S.W.3d 291,

the statements with actual malice.

affirmed in part, modified in part, and

vacated in part. Both parties sought re-

4. Libel and Slander O4

view.

Holdings: The Supreme Court, Green, J., ‘‘Actual malice,’’ in the defamation

held that: context, means the making of a statement

(1) objection by brother failed to preserve with knowledge that it is false, or with

for appeal issue of improper instruc- reckless disregard of whether it is true.

tion, and See publication Words and Phrases

for other judicial constructions and

(2) no evidence supported jury’s award of

definitions.

$3.8 million in actual damages to own-

er. 5. Libel and Slander O123(8)

Affirmed in part and reversed in part.

Qualified privilege against defamation

liability when the communication is made

1. Libel and Slander O50 in good faith and the author, recipient, or a

The common law provides a qualified third person, or one of their family mem-

privilege against defamation liability when bers has an interest that is sufficiently

communication is made in good faith and affected by the communication presents a

the author, the recipient, or a third person, question of law when the statements at

or one of their family members, has an issue employ unambiguous language and

interest that is sufficiently affected by the where the facts and circumstances of pub-

communication. lication are undisputed.

250 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

6. Libel and Slander O124(7), 128 12. Appeal and Error O232(3)

Comingling of unprivileged and poten- Objection by brother of family funeral

tially privileged statements for the jury to home owner failed to preserve for appeal

determine if each was substantially true at issue of improper instruction regarding

the time it was made may result in harm- statements made in a letter in action by

ful error in defamation action. owner against owner’s brother for defama-

tion, although the objection raised the sub-

7. Trial O238 ject of qualified privilege; where, when the

It is fundamental to the system of trial court asked brother if he had a re-

justice that parties have the right to be quested instruction, he responded only

judged by a jury properly instructed in the with a request for a question that ap-

law. peared to address the falsity of the state-

ments themselves, and it was unclear what

8. Appeal and Error O213

brother hoped to accomplish by requesting

Where a party does not raise an ob- an additional question. Vernon’s Ann.Tex-

jection in defamation action to comingling as Rules Civ.Proc., Rule 274; Rules App.

of unprivileged and potentially privileged Proc., Rule 33.1.

statements for the jury to determine if

each was substantially true at the time it 13. Appeal and Error O231(1), 775

was made, that party cannot raise the Procedural rules are construed lib-

issue, as it failed to preserve the claim. erally so that the right to appeal is not lost

unnecessarily; but, when an objection fails

9. Appeal and Error O230, 231(1), 242(1) to explain the nature of the error, court

The test for whether an issue is pre- cannot make assumptions.

served for appeal ultimately asks whether

14. Appeal and Error O181

the party made the trial court aware of the

complaint, timely and plainly, and obtained Preservation of error reflects impor-

a ruling. Rules App.Proc., Rule 33.1. tant prudential considerations recognizing

that the judicial process benefits greatly

10. Trial O279 when trial courts have the opportunity to

Purpose of rule that requires the par- first consider and rule on error.

ty objecting to a charge to point out dis- 15. Appeal and Error O181

tinctly the objectionable matter and the

Affording courts the opportunity to

grounds of the objection is to afford trial

first consider and rule on an alleged error

courts an opportunity to correct errors in

conserves judicial resources and promotes

the charge by requiring objections both to

fairness by ensuring that a party does not

clearly designate the error and to explain

neglect a complaint at trial and raise it for

the grounds for complaint. Vernon’s

the first time on appeal.

Ann.Texas Rules Civ.Proc., Rule 274.

16. Attorney and Client O62

11. Appeal and Error O231(1)

Supreme Court may not stray from

In order for an objection to preserve procedural rules because a party repre-

an issue for appeal, it must apprise the sented himself at trial.

trial court of the error alleged such that

the court has the opportunity to correct 17. Appeal and Error O1001(1, 3)

the problem. Vernon’s Ann.Texas Rules On an issue where the opposing party

Civ.Proc., Rule 274. bears the burden of proof, Supreme Court

BURBAGE v. BURBAGE Tex. 251

Cite as 447 S.W.3d 249 (Tex. 2014)

sustains a legal-sufficiency challenge to an 24. Libel and Slander O128

adverse finding if its review of the evi- Judicial review of jury discretion in

dence demonstrates a complete absence of awarding damages in defamation action re-

a vital fact, or if the evidence offered is no mains important to protect free speech,

more than a scintilla. even in a case outside the realm of media

defendants and public officials. U.S.C.A.

18. Appeal and Error O1001(1)

Const.Amend. 1.

More than a scintilla of evidence ex-

25. Libel and Slander O116

ists, as required to defeat a legal sufficien-

cy challenge to an adverse finding, when Supreme Court must ensure that non-

the evidence would enable reasonable and economic damages in defamation action

fair-minded people to reach different con- compensate for actual injuries and are not

clusions. simply a disguised disapproval of the de-

fendant.

19. Appeal and Error O1001(3) 26. Libel and Slander O112(1)

Supreme Court regards evidence that Some concrete basis for an estimate of

creates a mere surmise or suspicion of a the value of a business injured by defama-

vital fact as, in legal effect, no evidence. tion is required.

20. Appeal and Error O930(1) 27. Libel and Slander O117

No evidence supported jury’s award of

Supreme Court considers the evidence

$3.8 million in actual damages to owner of

in the light most favorable to the judg-

funeral home from defamation by owner’s

ment, crediting favorable evidence if rea-

brother, where the evidence did not show

sonable jurors could, and disregarding con-

actual loss of reputation, that anyone be-

trary evidence unless reasonable jurors

lieved the defamation, that the business

could not.

suffered an actual loss, or even the funeral

21. Libel and Slander O101(1), 114 home’s actual value.

Texas law presumes that defamatory 28. Damages O87(2)

per se statements cause reputational harm A party may not recover exemplary

and entitle a plaintiff to general damages damages unless the plaintiff establishes ac-

such as loss of reputation and mental an- tual damages.

guish; but this presumption yields only

29. Constitutional Law O2174

nominal damages.

Injunction O1456

22. Appeal and Error O1004(1) Prohibitive injunctions of future

Beyond nominal damages, Supreme speech that is the same or similar to

Court reviews presumed damages for evi- speech that has been adjudicated to be

dentiary support. defamatory operate as impermissible prior

restraints on free speech. U.S.C.A. Const.

23. Libel and Slander O121(.5) Amend. 1.

Jury latitude in awarding damages in

defamation action has limits; latitude does

not give the jury carte blanche to do what-

ever it will, especially when the action is David Greene, Electronic Frontier

brought by public officials. Foundation, San Francisco, CA, Marc A.

252 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

Fuller, Vinson & Elkins LLP, Dallas, TX, ness, in Worcester County, Maryland.

for Amicus Curiae, Electronic Frontier Chad is Kirk’s older brother. Chad and

Foundation. Kirk’s grandmother, Anna Burbage, man-

James J. Scheske, James J. Scheske, aged the funeral home from her husband’s

PLLC, Peter D. Kennedy, William Gerow death in the 1940s until her death in 1985.

Christian, Graves Dougherty Hearon & In her will, Anna left the funeral home and

Moody PC, Austin, TX, Jason P. Steed, all of its assets to Kirk.

Bell Nunnally & Martin LLP, Dallas, TX, Anna bequeathed the land for the Bur-

for Petitioner, Allen Chadwick Burbage.

bage family cemetery to her children,

Gregory Scott Cagle, Savrick, Schu- Richard Burbage, Sr., Chad and Kirk’s

mann, Johnson, McGarr Kaminski & Shir- father, and Jean Burbage Prettyman. Al-

ley, LLP, Austin, TX, for Respondent, W. though primarily a family cemetery, Anna

Kirk Burbage and Burbage Funeral and Richard gave permission for burial or

Home. entombment of several non-family mem-

bers. Richard died in 1991; in his will, he

Justice GREEN delivered the opinion of

left his 50% undivided interest in the fami-

the Court.

ly cemetery property to Chad and Kirk’s

In this defamation case, a jury assessed mother, Virginia Burbage Markham, but

compensatory and exemplary damages the will was never probated. Virginia con-

against Allen Chadwick Burbage (Chad) veyed this interest to Kirk by quitclaim

for ten statements defaming his brother, deed in 2003. Chad felt Kirk obtained the

W. Kirk Burbage (Kirk). The trial court funeral home and the family cemetery in-

also permanently enjoined Chad from terest through manipulation, first of Anna

making similar statements. We are pre- and later of Virginia.

sented with three issues: (1) whether any

defamatory statements fell within a quali- Although the origin of the strife between

fied privilege; (2) whether evidence sup- Chad and Kirk remains unclear, the

ports the jury’s damage awards; and (3) ‘‘Farm Property,’’ a 23–acre tract that Vir-

whether the trial court abused its discre- ginia inherited from Richard in 1991, ag-

tion by issuing the permanent injunction. gravated any existing discord. The poten-

Because we hold that Chad failed to pre- tial sale of the property ultimately aligned

serve error in the charge, we do not reach Virginia’s four children against each other:

the issue of qualified privilege. We also Chad and Patrice Burbage Lehmann want-

hold that the permanent injunction oper- ed to sell, while Kirk and his brother,

ates as an impermissible prior restraint on Keith, demurred. Throughout 2006 and

freedom of speech. Accordingly, we af- 2007, Chad exchanged heated emails with

firm those parts of the court of appeals’ Kirk’s attorney. In late 2007 and early

judgment. But, on damages, we hold that 2008, Chad created a website, www.anna

no evidence supports the compensatory burbage.org, to air his grievances with

damage award. We reverse that part of Kirk. Chad placed several posters around

the court of appeals’ judgment. town to publicize the website. The web-

site contained the following allegations:

I. Factual and Procedural 1 ‘‘Anna Burbage (‘Miss Anna’) was a

Background victim of Elder Abuse. The Abuser

Kirk owns and operates the Burbage was her grandson, Kirk Burbage and

Funeral Home, a centuries-old family busi- others.’’

BURBAGE v. BURBAGE Tex. 253

Cite as 447 S.W.3d 249 (Tex. 2014)

1 ‘‘Virginia Burbage Markham was the ulently misrepresented rights which

principal of Stephen Decatur High Kirk Burbage does not haveTTTT’’

School serving northern Worcester 1 ‘‘Kirk Burbage fraudulently obtained a

County Maryland. At the present Quit Claim [deed] from our mother by

time, she is being abused by her son, what is believed to be elder

Kirk Burbage, of the Burbage Funeral abuseTTTT’’

Home. She is currently a victim of

1 ‘‘Kirk Burbage and the Burbage Fu-

ELDER as well as FAMILY

ABUSE.’’ neral Home violated Maryland law by

not having a license to operate a ceme-

1 ‘‘The methods [of abuse] include: lies,

tery’’

trespassing, grand larceny, will tam-

pering/undue influence, gifts with the 1 ‘‘Kirk Burbage did commit fraud.’’

intent to control his mother, discredit- Kirk and the Burbage Funeral Home

ing fellow siblings, deceptively misrep- sued Chad for defamation in Bastrop

resenting the contents of legal docu- County.1 Chad appeared pro se. The tri-

ments requiring the signature of the al court submitted ten questions—one for

ABUSED for personal gain and to each of the statements reproduced above—

cover up land fraud and involving the asking the jury whether Chad had proven

ABUSED ELDER in Cemetery Land that the statements were substantially

Fraud implicating several families in- true. The jury answered ‘‘no’’ to all ques-

cluding Shirley and Brice Phillips of tions. The court also asked questions on

the Phillips Crab House.’’ compensatory and exemplary damages for

1 ‘‘Kirk Burbage has also been known to Kirk and, separately, for the Burbage Fu-

abuse the dead, specifically his cousin, neral Home. The court instructed the jury

Anne Prettyman Jones.’’ that all statements were defamatory per se

Chad also sent letters to Shirley and Brice because each statement either leveled a

Phillips, family friends of the Burbages criminal charge or tended to cause injury

who had earlier obtained permission to to the funeral home’s business or to Kirk’s

place a mausoleum in the Burbage ceme- profession. The jury awarded Kirk

tery. The letters espoused a common in- $6,552,000: $250,000 for past injury to rep-

terest in settling property rights to the utation; $2,500,000 for future injury to

cemetery but stated, ‘‘You currently have reputation; $1,000 for past mental an-

no title or right to be in the Burbage guish; $1,000 for future mental anguish;

Family Cemetery.’’ Chad made the fol- and $3,800,000 in exemplary damages.

lowing statements in the letters: The jury awarded the Burbage Funeral

1 ‘‘Kirk Burbage has committed numer- Home $3,050,000: $50,000 for past injury

ous abuses to family members.’’ to reputation; $1,000,000 for future injury

1 ‘‘We are the victims of the selfish, to reputation; and $2,000,000 in exemplary

greedy and unlawful actions of Kirk damages. The trial court also permanent-

Burbage.’’ ly enjoined Chad from future defamatory

1 ‘‘Kirk Burbage of the Burbage Funer- speech in a four-page list of prohibited

al Home with the assistance of his topics (tied to the ten defamatory state-

attorney Robert McIntosh have fraud- ments).

1. Chad was a resident of Bastrop County, TEX. CIV. PRAC. & REM.CODE § 15.017.

Texas at the time the lawsuit was filed. See

254 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

Chad appealed. The court of appeals Boyd, 460 S.W.2d 881, 884 (Tex.1970). If a

reduced the exemplary damages to defendant establishes the privilege, the

$750,000 under Texas Civil Practice and burden shifts to the plaintiff to prove that

Remedies Code section 41.008(b), upheld the defendant made the statements with

the other damage awards, and vacated the actual malice. Dun & Bradstreet, Inc. v.

injunction. 447 S.W.3d 291, 295, 2011 WL O’Neil, 456 S.W.2d 896, 898 (Tex.1970).

6756979 (Tex.App.-Austin 2011, pet. grant- Actual malice, in the defamation context,

ed) (mem.op.). Each party petitioned for means ‘‘the making of a statement with

review; we granted both petitions. 57 knowledge that it is false, or with reckless

Tex. Sup.Ct. J. 53 (Nov. 22, 2013). disregard of whether it is true.’’ Hagler v.

Proctor & Gamble Mfg. Co., 884 S.W.2d

II. Qualified Privilege 771, 772 (Tex.1994) (per curiam). Quali-

and Charge Error fied privilege presents a question of law

when the statements at issue employ un-

We first address Chad’s contention that ambiguous language and where the facts

qualified privilege barred Kirk’s recovery and circumstances of publication are undis-

based on Chad’s defamatory statements to puted. Fitzjarrald v. Panhandle Pub. Co.,

the Phillipses. If Chad’s statements were 149 Tex. 87, 228 S.W.2d 499, 505 (1950).

privileged, the jury’s answers on damages

Of the ten statements that the trial

would rest upon invalidly submitted theo-

court found defamatory per se, Chad made

ries of liability. We hold that, even if the

six of those statements in letters to the

privilege applied, Chad failed to preserve

Phillipses, while four appeared on the web

jury charge error on this point.

site or posters. Chad argues that a quali-

fied privilege protects his communication

A. Chad’s Qualified Privilege Claim

with the Phillipses because both he and

[1–5] The common law provides a qual- they had an interest ‘‘sufficiently affected

ified privilege against defamation liability by the communication.’’ The Phillipses ob-

when ‘‘communication is made in good viously had an interest, Chad suggests, in

faith and the author, the recipient or a whether Kirk had the right to sell them a

third person, or one of their family mem- mausoleum and whether any other Bur-

bers, has an interest that is sufficiently bage family members objected to interring

affected by the communication.’’ Cain v. the Phillipses at the family cemetery.

Hearst Corp., 878 S.W.2d 577, 582 (Tex. Chad contends that the court of appeals

1994). We have recognized that defama- erred when it found the letter unprotected

tion actions necessarily inhibit free speech by the ‘‘common-interest privilege’’; spe-

and, thus, the qualified privilege offers an cifically, Chad objects to the court of ap-

additional safeguard, even in cases of pri- peals’ suggestion that ‘‘antithetical’’ inter-

vate, non-political speech. See id. The ests cannot form the basis for a qualified

privilege operates as an affirmative de- privilege. 2011 WL 6756979, at *9. While

fense in the nature of confession and the court of appeals seized on the ‘‘com-

avoidance; the defendant bears the burden mon-interest’’ language, which Chad some-

of proving privileged publication unless the times used in briefing, our case law identi-

plaintiff’s petition affirmatively demon- fies the affirmative defense at issue here

strates privilege. Denton Pub. Co. v. as qualified privilege.2

2. Compare Cain, 878 S.W.2d at 582 (privileg- ing communication when made ‘‘in good faith

BURBAGE v. BURBAGE Tex. 255

Cite as 447 S.W.3d 249 (Tex. 2014)

[6] The trial court submitted the ten question. Kirk responds that Chad must

statements—four unprivileged and six po- specifically object to the damages ques-

tentially privileged—for the jury to deter- tion’s form, not merely to the underlying

mine if each statement was substantially liability issue. Kirk further argues that

true at the time it was made. On dam- even Chad’s qualified privilege objection

ages, the trial court submitted broad-form failed to preserve error.

questions that incorporated the jury’s an-

swers for all ten statements. If the quali- 1. Charge Error Based on Valid and

fied privilege applied to any statements, Invalid Liability Theories

then, the broad-form damages questions [7] ‘‘It is fundamental to our system of

incorporated both valid and invalid bases justice that parties have the right to be

for liability. Such commingling may result judged by a jury properly instructed in the

in harmful error. Cf. Crown Life Ins. Co. law.’’ Casteel, 22 S.W.3d at 388. Thus, in

v. Casteel, 22 S.W.3d 378, 388 (Tex.2000) Casteel, we required a new trial when a

(reversing for new trial due to erroneous timely and specific objection preserved the

commingling of valid and invalid liability issue of erroneous commingling of valid

theories in a single broad-form liability and invalid theories of liability in a broad-

question). To obtain reversal due to such form liability question, such that the appel-

a charge error, Chad must have preserved late court could not determine whether the

the error at trial. In re B.L.D., 113 jury based its verdict on an improperly

S.W.3d 340, 349 (Tex.2003) (‘‘[A]ny com- submitted theory. Id. (citing TEX.R.APP. P.

plaint to a jury charge is waived unless 61.1). Extending this principle in Harris

specifically included in an objection.’’). We County v. Smith, 96 S.W.3d 230, 234 (Tex.

now turn to this preservation question. 2002), we determined that a broad-form

damages submission mixing valid and in-

B. Preservation of Charge Error valid elements of damages created the

The court of appeals held that Chad same type of harmful error. And in

waived any claim of error in the submis- Romero v. KPH Consolidation, Inc., 166

sion of potentially privileged statements S.W.3d 212, 225 (Tex.2005), where evi-

because he ‘‘did not object in the trial dence supported the jury’s negligence find-

court to the submission of broad-form ing but not its malicious credentialing find-

damages questions.’’ 447 S.W.3d at 300– ing, we held that the trial court committed

01 (citing In re B.L.D., 113 S.W.3d at 349). harmful error by submitting an apportion-

In In re B.L.D., we held that the court of ment question which allowed the jury to

appeals erred by reviewing a jury charge consider malicious credentialing. We ex-

complaint when the parties did not object plained that ‘‘[e]ven if the jury could still

at trial to the form of submission. 113 have made the same apportionment of

S.W.3d at 349, 355. Chad suggests that fault [without considering malicious cre-

this case differs because he raised an ob- dentialing], the error in the question is

jection on qualified privilege, which pre- nevertheless reversible because it effec-

served error in any derivative damages tively prevents [the appellant] from com-

and the author, the recipient or a third per- ‘‘circumstances lead any one of several per-

son, or one of their family members, has an sons having a common interest in a particular

interest that is sufficiently affected by the subject matter correctly or reasonably to be-

communication’’), with RESTATEMENT (SECOND) lieve that there is information that another

OF TORTS § 596 (1977) (describing the com- sharing the common interest is entitled to

mon-interest privilege, which arises when know’’).

256 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

plaining on appeal that they would not we need not address whether a further

have done so.’’ Id. at 226. Casteel-type objection is required.

[8] We continue to adhere to these 2. Specific Objections

principles. Yet in addition to the common [9] Our rules of procedure establish

animating principle of properly instructing the preservation requirements to raise a

the jury in the law, these cases share jury-charge complaint on appeal. Id. at

another link: some timely and specific ob- 689. The complaining party must object

jection. Romero, 166 S.W.3d at 229; Har- before the trial court and ‘‘must point out

ris Cnty., 96 S.W.3d at 232; Casteel, 22 distinctly the objectionable matter and the

S.W.3d at 387. In other words, in situa- grounds of the objection.’’ TEX.R. CIV. P.

tions where a party does not raise a Cas- 274; see also TEX.R.APP. P. 33.1. Under

teel-type objection, that party surely can- Rule of Civil Procedure 274, ‘‘[a]ny com-

not raise a Casteel issue when it failed to plaint as to a question, definition, or in-

preserve a claim of an invalid theory of struction, on account of any defect, omis-

liability that forms the basis of a Casteel- sion, or fault in pleading, is waived unless

type error. If we allowed litigants to raise specifically included in the objections.’’

a Casteel issue with no valid objection, TEX.R. CIV. P. 274. As a general rule,

either to liability or submission form, those preservation requires (1) a timely objection

‘‘stating the grounds for the ruling that the

litigants could use a post-trial motion to

complaining party sought from the trial

raise a lack of evidence on the liability

court with sufficient specificity to make the

question, thus bypassing the crucial step of

trial court aware of the complaint, unless

allowing the trial judge to correct any

the specific grounds were apparent from

errors in the charge.

the context,’’ and (2) a ruling. See TEX.

In Romero, we declined to address R.APP. P. 33.1. Stated differently, the test

whether the appellant must object both to ultimately asks ‘‘whether the party made

the lack of evidence to support submission the trial court aware of the complaint,

of a jury question and the form of the timely and plainly, and obtained a ruling.’’

submission, because in that case the appel- State Dep’t of Highways & Pub. Transp. v.

lant did both. 166 S.W.3d at 229 & n. 55 Payne, 838 S.W.2d 235, 241 (Tex.1992).

(acknowledging the difficult question of [10] Importantly, the ‘‘purpose of Rule

whether an additional broad-form objec- 274 is to afford trial courts an opportunity

tion is required) (citing Pan E. Explora- to correct errors in the charge by requir-

tion Co. v. Hufo Oils, 855 F.2d 1106, 1124 ing objections both to clearly designate the

(5th Cir.1988)). But whether or not an error and to explain the grounds for com-

objection to both is required, some timely plaint.’’ Wilgus v. Bond, 730 S.W.2d 670,

and specific objection must raise the issue 672 (Tex.1987); see Payne, 838 S.W.2d at

in the trial court. See Thota v. Young, 366 243 (Mauzy, J., dissenting) (‘‘Only by prop-

S.W.3d 678, 691 (Tex.2012) (requiring er objection does a litigant afford the trial

‘‘some objection to the charge,’’ whether to court sufficient opportunity to correct de-

evidentiary support or to form, to preserve fects in the charge.’’). We apply these

error for appellate review). Here, Chad rules to Chad’s objection.

objected based on qualified privilege, but

he made no objection to the form of sub- 3. Chad’s Objection

mission. If Chad’s initial objection on The following dialogue occurred at the

qualified privilege did not preserve error, formal charge conference:

BURBAGE v. BURBAGE Tex. 257

Cite as 447 S.W.3d 249 (Tex. 2014)

Mr. Cagle: 3 I’m not sure if this is an [11, 12] Chad claims that the trial

objection. I apologize, Your Honor. court erred in submitting liability ques-

But the matter of in the amended— tions on the potentially privileged state-

defendant’s amended—first amendment ments. Therefore, Chad’s objection need-

to the original response, defendant has ed to communicate to the trial court that it

requested that there be a qualified privi- was improper to submit Questions 5

lege relative to the letter, and the rea- through 10 (on statements in the Phillips

son for the qualified privilege is it repre- letters) to the jury. The objection does

sents common interests, a continuation raise the subject of the qualified privilege.

of a prior judicial proceeding in Mary- But, crucially, the objection must apprise

land and a continuation of trying to re- the trial court of the error alleged such

solve matters of mutual concern between that the court has the opportunity to cor-

the parties of the cemetery. rect the problem. See Wilgus, 730 S.W.2d

The Court: All right. Do you have a at 672. When the trial court asked Chad

requested instruction that you’re asking whether he had a requested instruction,

the Court to consider and to include in Chad responded only with a request for a

the charge? question that appears to address the falsi-

Mr. A. Burbage: I have—it seems as ty of the statements themselves. As Chad

though it would—it would require the— has argued, a qualified privilege may still

a question in the line after—after you apply even when the statements are false.

find that the statement inflammatory, See O’Neil, 456 S.W.2d at 898. It is un-

then there would be a question do you clear what Chad hoped to accomplish by

find the statement blah-blah-blah was requesting an additional question if he

false at the time it was made as it wanted the court to withhold Question 5

related to— through 10 from the jury.4 And it is un-

The Court: All right. Anything further certain even to which questions Chad re-

on that? On that particular issue is ferred (presumably Questions 5 through

there anything further? 10, but the word ‘‘inflammatory,’’ which

Mr. A. Burbage: No. It was—it’s been Chad uses to describe the placement of his

mentioned in the testimony. proposed question, appears nowhere in the

The Court: All right. The objection is charge). Quite simply, Chad has not pro-

overruled. The requested instruction is vided a specific objection indicating the

denied. alleged error in the charge and allowing

3. The record states that Mr. Cagle, Kirk’s question of whether Chad acted with actual

attorney, initially made the objection. The malice. But the trial court gave the incorrect

reproduction in Kirk’s brief on the merits common law definition of malice, Chad did

instead attributes the objection to Chad. In- not object to the incorrect malice definition,

deed, it makes more sense in context that and, as Chad argues, the burden on actual

Chad made the initial objection. We decline malice falls to Kirk, not Chad. Such a confus-

to attach importance to this potential record ing objection, raised during the crucial

error because we find either objection insuffi- charge conference, could not have apprised

cient to preserve error. the trial judge that Chad objected to the sub-

4. We cannot safely engage in assumptions mission of the offending questions. Chad ex-

about what Chad might have meant. Wheth- plained his desire more coher

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